HQ 957806: Footwear; Uppers, external surface area; Accessories and reinforcements; Plausible upper material; HRL's 953556, , 087430, 952245, 956398

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 957806  
                         
                          April 21, 1995

CLA-2 R:C:M  957806 DFC 

CATEGORY:  Classification 

TARIFF NO.: 6403.99.60;  6403.99.90 

Mr. John Qualey 
Rogers & Brown
Custom Brokers, Inc., 
2 Cumberland St (29401)
P.O. Box 20160 
Charleston, S.C. 29413-0160 

RE:  Footwear;  Uppers, external surface area;  Accessories and
     reinforcements;  Plausible upper material;  HRL's 953556, ,
     087430, 952245, 956398   

Dear Mr. Qualey:

     Your letters dated February 28 and March 1, 1995, addressed
to U.S Customs, Charleston, South Carolina, on behalf of Wilson
Sporting Goods, concerning the tariff classification  of athletic
shoes under the Harmonized Tariff Schedule of the United States
(HTSUS), has been referred to  this office for a response. 
Samples were submitted for examination. 

FACTS:  

     The samples, produced in Taiwan, consist of three styles of
women's shoes (S1310 "Hard Drive," S1350 "Zonal," and S1351
"Zonal") and one style of men's shoes (S1341 "Zonal").  These
shoes have rubber soles and uppers of textile and leather.   The
leather on these uppers covers all of the underlying white,
woven, textile fabric [plausible upper material] leaving none of
it visible on the surface.  However, a separate piece of
underlying textile material, an open mesh, is exposed and visible
on the inside quarter of the shoe.  

ISSUE: 

     What is the constituent material which comprises the
greatest external surface area of the footwear uppers? 




LAW AND ANALYSIS: 

     Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's).  GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's]."  In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes. 
     
     Footwear is provided for in Chapter 64, HTSUS.  Note 3 to
chapter 64, HTSUS, reads, as follows:  

     3.   For the purposes of this chapter, the expression
          "rubber or plastics" includes any textile material
          visibly coated (or covered) externally with one or both
          of those materials. 

     Note 4(a) to chapter 64, HTSUS, reads, as follows: 

     4.   Subject to note 3 to this chapter: 

          (a)  The material of the upper shall be taken to be the
               constituent material having the greatest external
               surface area, no account being taken of
               accessories or reinforcements such as ankle
               patches, edging, ornamentation, buckles, tabs,
               eyelet stays or similar attachments[.] 

     The Harmonized Commodity Description and Coding System
Explanatory Notes to the HTSUS (EN), although not dispositive, or
legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of the HTSUS.  See T.D. 89-80, 54 FR 35127, 35128
(August 23, 1989).  General EN (D) to chapter 64, HTSUS, which is
relevant here, reads, in pertinent part as follows: 

     If the upper consists of two or more materials,
     classification is determined by the constituent material
     which has the greatest external surface area, no account
     being taken of accessories or reinforcements such as ankle
     patches, protective or ornamental strips or edging, other
     ornamentation (e.g., tassels, pompons or braid), buckles,
     tabs, eyelet stays, laces or slide fasteners.  

     In Headquarters Ruling Letter (HRL) 953556 dated April 9,
1993, Customs took the position that "the term 'accessories or
reinforcements,' although not fully defined, includes any
additional material added to an otherwise completed upper as long
as the underlying material is a plausible upper material, if not
the best material."  

     In HRL 087430 dated October 22, 1990, we took the position
that a layer which comprises all of the external surface of the
upper (ESAU) is in fact the ESAU even if there is a plausible
upper material underneath.  Therefore, in this instance we 
consider the leather which completely overlays the white, woven,
textile fabric [plausible upper material] as ESAU rather than
accessories or reinforcements.  See, also HRL 952245 dated July
6, 1993.  Further, we consider the open mesh material which is
visible and tactile as ESAU.  See, HRL 956398 dated November 15,
1994.  

HOLDING:  

     Leather is the constituent material comprising the greatest
ESAU of the subject footwear.  

     Women's styles S1310 "Hard Drive," S1350 "Zonal," and S1351
"Zonal" are classifiable under subheading 6403.99.90, HTSUS,
which provides for footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of leather, other
footwear, other, for other persons, valued over $2.50/pair.  The
applicable rate of duty for this provision is 10% ad valorem. 

     Men's style S1341 "Zonal" is classifiable under subheading
6403.99.60, HTSUS, which provides for footwear with outer soles
of rubber, plastics, leather or composition leather and uppers of
leather, other footwear, other, for men, youths and boys.  the
applicable rate of duty for this provision is 8.5 ad valorem. 




                                   Sincerely, 



                                   John Durant, Director 
                                   Commercial Rulings Division