HQ 081388: Tariff Classification of certain footwear manufactured in Korea

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 081388

                                     April 13 1989


            CLA-2 CO:R:C:G  081388 DFC

            CATEGORY:  Classification

            TARIFF NO.:  6402.91.4015; 6404.11.2030

            Ms. Pat Schuermann
            Brown Group International
            8400 Maryland Avenue
            P.O. Box 450
            St. Louis, Missouri  63166

            RE:  Tariff Classification of certain footwear manufactured in
                 Korea

            Dear Ms. Schuermann:

                 In a letter dated November 25, 1987, you inquired as to
            the tariff classification of certain footwear under the Tariff
            Schedules of the United States and also under the Harmonized
            Tariff Schedule of the United States Annotated (HTSUSA).
            Inasmuch as the HTSUSA became effective on January 1, 1989, our
            ruling will be limited to the provisions of that schedule.

            FACTS:

                 Samples designated as Stein Pattern #93707, Champion
            Pattern #95403 and Barley Pattern # 95402 were submitted for
            examination.

                 Stein Pattern #93707 is a men's snow jogger which measures
            approximately 10 inches in height.  It has a polyurethane upper
            (printed to resemble woven fabric), piping trim across the
            vamp, vinyl mudguards, partial rubber outside heel counter, EVA
            wedge midsole and rubber outer sole.

                 Champion Pattern #95403 is a men's shoe measuring
            approximately 7-1/4 inches in height.  In has a textile upper,
            suede overlays, PU padded collar, rubber foxing band, EVA
            midsole and rubber outer sole.

                 Barley Pattern #95402 is a men's shoe measuring
            approximately 5-1/2 inches in height.  It has a textile upper,
            split leather overlays, padded collar and tongue, rubber toe
            bumper, heel stabilizer, EVA midsole and rubber outer sole.














                                         - 2 -

            ISSUE:

                 Does the Stein Pattern #93707 have a rubber or plastic
            sole, the sidewalls of which rise to a point more than 3cm (1.2
            inches) above the top of the outer sole?

                 What material constitutes the external surface area of the
            uppers of Champion Pattern #95403?

            LAW AND ANALYSIS:

                                 Stein Pattern #93707

                 Subheading 6402.91.40, HTSUSA, provides in pertinent part
            for other footwear with outer soles and uppers of rubber or
            plastics, covering the ankle, having uppers of which over 90
            percent of the external surface area (including any accessories
            or reinforcements such as those mentioned in note 4(a) to this
            chapter) is rubber or plastics except * * * (2) except footwear
            (other than footwear having uppers which from a point 3cm above
            the top of the outer sole are entirely of non-molded
            construction formed by sewing the parts together and having
            exposed on the outer surface a substantial portion of
            functional stitching) * * *.

                 If the rubber heel mold is part of the sole,
            classification under subheading 6402.91.40, HTSUSA, is
            precluded because the boot has a rubber or plastic sole, the
            sidewalls of which rise to a point more than 3cm (1.2 inches)
            above the top of the outer sole.

                 A careful examination of the sample shows that the rubber
            heel mold is simply an overlay onto the upper and not part of
            the sole.  Consequently, the sample is not precluded from
            classification under subheading 6402.91.40, HTSUSA.

                                Champion Pattern #95403

                 Note 4(a) to Chapter 64, HTSUSA, provides that "[t]he
            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, edgings, ornamentation, buckles, tabs, eyelet stays or
            similar attachments."

                 Subheading 6404.11.20, HTSUSA, provides for footwear with
            outer soles or rubber, plastics, leather or composition leather
            and uppers of textile materials, sports footwear, tennis shoes,














                                         - 3 -

            basketball shoes, gym shoes, training shoes and the like,
            having uppers of which over 50 percent of the external surface
            area (including any leather accessories or reinforcements such
            as those mentioned in note 4(a) to this chapter) is leather.

                 It is clear that when both the leather accessories and the
            reinforcing rubber foxing band are removed you have a textile
            surface.  However, when you only add back to the external
            surface the leather overlays, a question arises as to the
            portion of leather on the upper that is under the rubber foxing
            band, especially since it is considered a rubber part of the
            exterior surface area under the Tariff Schedules of the United
            States.  Inasmuch as the rubber tape is excluded from
            computation as external surface area of the upper by Note 4(a)
            to Chapter 64, HTSUSA, there are two plausible alternatives:

                 1.  The entire leather accessory should be
                     added back with the rubber tape over it
                     removed.  In this way we are including
                     only the leather accessories in the upper's
                     external surface area.

                 2.  Only that portion of the leather surface
                     visible in the finished shoe should be
                     included as external surface area.
                     Consequently, the upper's external surface
                     in that area with three layers, i.e.,
                     textile, leather and rubber, would be
                     textile.

                 It is our view that the first alternative is the more
            logical position.  Therefore, the upper's external surface area
            is over 50 percent leather which mandates classification of the
            sample under subheading 6404.11.20, HTSUSA.

                                 Barley Pattern #95402

                 It is clear based on a visual examination of the sample
            that more than 50 percent of the external surface area of its
            upper is leather.  Consequently, footwear represented by the
            sample is classifiable under subheading 6404.11.20, HTSUSA.





















                                         - 4 -

            HOLDING:

                 Champion Pattern #95403 and Barley Pattern #95402 are
            classifiable under subheading 6404.11.2030, TSUSA, as footwear
            with outer soles of rubber, plastics, leather or composition
            leather and uppers of textile materials, sports footwear,
            tennis shoes, basketball shoes, gym shoes, training shoes and
            the like, having uppers of which over 50 percent of the
            external surface area (including any leather accessories or
            reinforcements such as those mentioned in Note 4(a) to this
            chapter) is leather.  The applicable rate of duty for this
            provision is 10.5 percent ad valorem.

                 Stein Pattern #93707 is classifiable under subheading
            6402.91.4015, HTSUSA, as other footwear with outer soles and
            uppers of rubber or plastics, covering the ankle, having uppers
            of which over 90 percent of the external surface area
            (including any accessories or reinforcements such as those
            mentioned in Note 4(a) to this chapter) is rubber or plastics.
            The applicable rate of duty for this provision is 6 percent ad
            valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division



























            joan jackson library 081388c
            6cc:  Area Director, New York Seaport
            1cc:  James Sheridan New York Seaport
            1cc:  District Director, St. Louis Missouri
            DFCahill:jaj:4/11/89