HQ 081646: Footwear; basketball shoe

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 081646

                                    March 27, 1989


            CLA-2 CO:R:C:G 081646 c

            CATEGORY: Classification

            TARIFF NO.:  6402.91.8030

            John Pellegrini, Esq.
            Ross & Hardies
            529 Fifth Avenue
            New York, New York  10017-4608

            RE:  Footwear; basketball shoe

            Dear Mr. Pellegrini:

                 In a letter dated January 20, 1988, you inquired as to the
            tariff classification under the Harmonized Tariff Schedule of
            the United States (HTSUSA), of certain footwear produced in
            Korea.

            FACTS:

                 The footwear involved is a man's high-top basketball shoe
            having a rubber shell molded bottom.  The upper portion
            consists of: a leather toe cap; leather vamp, quarters, and
            heel counter (with vinyl and textile inserts) stitched to the
            toe cap and lasted; a hard plastic heel stabilizer between a
            vinyl underlay and the leather heel counter; a padded vinyl
            collar; a vinyl tongue; a vinyl underlay basted to the vamp and
            which extends to the heel; and, a fabric lining with foam
            rubber padding.  The leather toe-cap, vamp, quarter and heel
            counter and the vinyl underlay are assembled prior to lasting.
            The leather components have a lasting allowance while the vinyl
            underlay has only a partial lasting allowance.

                 You maintain that the instant footwear is classifiable
            under subheading 6403.91.6040, HTSUSA, as footwear with outer
            soles of rubber, plastics, leather or composition leather and
            uppers of leather, other, footwear, covering the ankle, other,
            for men, youths and boys, other, basketball shoes, for men,
            other with duty at the rate of 8.5 percent ad valorem.

            ISSUE:

                 What is the identity of the constituent material of the
            upper?













                                         - 2 -

            LAW AND ANALYSIS:

                 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, edging, ornamentation, buckles, tabs, eyelet stays or
            similar attachments".

                 General Explanatory Note (D) to Chapter 64 states in
            pertinent part that "(i)f 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."

                 If the leather vamp, quarters and heel counter are
            accessories or reinforcements and the vinyl underlay is
            considered the external surface area, the constituent material
            of the upper would be plastic.  However, if the leather vamp,
            quarters and heel counter are neither accessories nor
            reinforcements, they, along with the leather toe-cap, would
            make up the constituent material of the upper.

                 You assert that the common characteristic of the examples
            in Chapter Note 4(a) is that they are added to an otherwise
            complete upper in the sense that in the absence of the
            "accessories or reinforcements" it would still function to
            protect and support the foot.  You claim that on the submitted
            sample that the vinyl "underlay" could not function in this
            manner and in use the support would tear away from the toe-cap.
            Furthermore, you state that the joining of the vamp to the
            leather toe cap secures the integrity of the upper at this
            stress point and that in the absence of the leather heel
            counter the stabilizer would provide little support to the
            wearer.

                 You point out that removal of the vinyl underlay would not
            leave an incomplete upper.  Without the underlay the upper
            would function and neither it nor the shoe would break apart.
            Thus, it is clear that the vinyl underlay should be disregarded
            as an accessory or reinforcement.  For this reason and the
            reasons previously stated the constituent material of the upper
            is leather which mandates classification of the footwear under
            subheading  6403.91.6040, HTSUSA.















                                         - 3 -

                 We agree that the sample's upper will survive much more
            stress because of the presence of the referenced pieces.
            However, this is precisely the function of a "reinforcement."
            As to this upper, there are so many layers of material that
            some pieces could be considered as reinforcing reinforcements,
            but they would still be "reinforcements."

                 It is our position that the term "accessories and
            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,
            even if not the best material.  For example, vinyl is a
            plausible upper material in any athletic shoe, but foam/tricot
            is normally a lining material and is not a plausible upper
            material.  On the submitted sample, the white leather outside
            counter, side pieces, upper eyelet stay/anchor, and toe bumper;
            the purple leather lower eyelet stay/anchor/side piece; the
            purple and gold plastic side flashes and counter (under the
            leather outside counter); and the rubber sidewalls of the
            cupsole are all added to a completed upper and are accessories
            or reinforcements.  Therefore, we consider vinyl to be the
            material with the greatest external surface because the plastic
            quarters and collar clearly are larger than the leather toe
            piece.

                 The tongue and laces are excluded from computation as part
            of the external surface area of the upper following
            Headquarters Ruling Letter 081305 dated March 10, 1988.

                 With your supplemental letter dated October 11, 1988, you
            submitted a copy of a letter dated October 4, 1988, from Her
            Majesty's Customs and Excise holding that a shoe which you
            claim is identical in construction to the shoe in issue is
            classifiable under subheading 6403.91.15 covering footwear with
            leather uppers.  It is your belief that this letter confirms
            your view as to the proper tariff classification of the
            footwear.

                 While the above-cited letter is useful in assisting us to
            arrive at a determination in this matter, we are not bound by
            an administrative decision of another government.





















                                         - 4 -

            HOLDING:

                 The sample basketball shoe is classifiable under
            subheading 6402.91.8030, HTSUSA, as other footwear with outer
            soles and uppers of rubber or plastics, other footwear,
            covering the ankle, other, other, valued over $6.50 but not
            over $12/pair, for men with duty at the rate of 90 cents per
            pair plus 20 percent ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division