HQ 956398

November 15, 1994

CLA-2 CO:R:C:M 956398 DFC

CATEGORY: Classification

TARIFF NO.: 6402.19.10; 6402.19.70; 6404.11.20; 6404.11.80;

6404.11.90;

District Director of Customs

P.O. Box 37260

6269 Ace Industrial Dr, Cudahy WI.

Milwaukee, WI 53237-0260

RE: Protest 3701-94-100024; Footwear, sports; Upper, external

surface area; Accessories or reinforcements; HQ

084013,085381,953556

Dear District Director:

This is in response to Protest 3701-94-100024 covering a

shipment of athletic footwear \[baseball shoes\] produced in

Taiwan. Samples were submitted for examination.

FACTS:

The five sample baseball shoes submitted have full mesh

uppers with plastic or leather overlays stitched on top of them.

Protestant entered styles 7001, 7501, 5006, 6006 and 9230

under subheading 6402.19.10, Harmonized Tariff Schedule of the

United States (HTSUS), which provides for sports footwear with

outer soles and uppers of rubber or plastics and 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.

Style 7001 was classified under subheading 6402.19.70,

HTSUS, which provides for sports footwear with outer soles and

uppers of rubber or plastics and having a foxing-like band

applied or molded at the sole and overlapping the upper, other,

valued over \$6.50 but not over \$12/pair.

Style 7501 was classified under subheading 6404.11.80,

HTSUS, which provides for sports footwear with outer soles of

rubber, plastics, leather or composition leather and uppers of

textile materials, other, valued over \$6.50 but not over

\$12/pair.

Styles 5006 and 6006 were classified under subheading

6404.11.20, HTSUS, which provides for sports footwear with outer

soles of rubber, plastics, leather or composition leather and

uppers of textile material, 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.

Style 9230 was classified under subheading 6404.11.90,

HTSUS, which provides for sports footwear with outer soles of

rubber, plastics, leather or composition leather and uppers of

textile materials, other, valued over \$12/pair.

The entry covering the above-listed styles was liquidated on

February 18, 1984. The protest was timely filed on April 12,

1994\.

ISSUE:

What is the constituent material which comprises the

greatest external surface area of the footwear uppers (ESAU)?

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.

The competing provisions read, as follows:

6402 Other footwear with outer soles and uppers of rubber or

plastics:

Sports footwear:

\* \* \*

6402.19 Other:

6402.19.10 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

footwear having foxing or a foxing-like

band applied or molded at the sole and

overlapping the upper and except

footwear designed to be worn over, or in

lieu of other footwear as a protection

against water, oil, grease or chemicals

or cold or inclement weather). . . . .

\* \* \*

Other:

\* \* \*

6402.19.70 Valued over \$6.50 but not over

\$12/pair

\* \* \*

6404 Footwear with outer soles of rubber, plastics, leather

or composition leather and uppers of textile materials:

Footwear with outer soles of rubber or plastics:

6404.11 Sports footwear; tennis shoes, basketball

shoes, gym shoes, training shoes and the

like:

6404.11.20 Having uppers of which over 50 percent

of the external surface area (including

any leather accessories or reinforce-

ments such as those mentioned in note

4(a) to this chapter is leather. . . . .

\* \* \*

Other:

Valued over \$3 but not over

\$6.50/pair:

6404.11.70 Other. . . . . . .

6404.11.80 Valued over \$6.50 but not over

\$12/pair. . . . . . .

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,

should be looked to for the proper interpretation of the HTSUS.

See T.D. 89-80, 54 FR 35127, 25128 (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.\" See HRL 084013 dated March 26, 1990.

It is our opinion that the mesh textile underlying the

plastic or leather overlays is a plausible upper material and

should be included in determining the constituent material of the

uppers. A laboratory analysis of the styles involved revealed

that after the accessories and reinforcements were removed, the

uppers were almost entirely of textile material \[mesh\]. Thus,

after note 4(a) to chapter 64, HTSUS, supra, is applied, the

uppers of the subject styles are almost entirely textile material

which mandates their classification under heading 6404, HTSUS.

Protestant cites HRL 085381 dated November 21, 1989,

concerning the tariff classification of a glass beaded shoe as

authority for his position that the uppers of the footwear styles

in issue should be considered plastic rather than textile. The

woman\'s shoe involved in HRL 085381 had an upper the external

surface area of which was almost entirely of glass beads except

for small gaps between the beads where portions of the underlying

fabric were visible. Although the underlying textile was a

plausible upper material, Customs ruled that the beaded shoe was

more accurately described as having a glass upper instead of a

textile upper. The rationale for this position was that the

beads were more than a mere accessory or reinforcement because

they were so extensive and clearly constituted a significant

portion of the ESAU of the shoe. Further, because of the expense

and work involved in attaching the glass beads to the upper, the

beads were considered to constitute more than an ankle patch,

edging, ornamentation or buckle.

Protestant would apply the same rationale used to justify

the result reached in HRL 085381 to the subject samples. HRL

085381 has no application here because the ESAU of the beaded

shoe was covered almost entirely with glass beads and with very

little textile material showing. In the instant case substantial

amounts of textile material \[mesh\] are visible on the surface.

Classification of style 7001 under subheading 6402.19.70,

HTSUS, with duty at the rate of 90 cents per pair plus 20% ad

valorem was incorrect. It is properly classifiable under

subheading 6404.11.80, HTSUS, with duty at the rate of 90 cents

per pair plus 20% ad valorem.

HOLDING:

The constituent material which comprises the greatest

external surface area of the footwear uppers is textile material.

Styles 7001 and 7501 are dutiable at the rate of 90 cents

per pair plus 20% ad valorem under subheading 6404.11.80, HTSUS.

Styles 5006 and 6006 are dutiable at the rate of 10.5% ad

valorem under subheading 6404.11.20, HTSUS.

Style 9230 is dutiable at the rate of 20% ad valorem under

subheading 6404.11.90, HTSUS.

The protest should be denied. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4,

1993, Subject: Revised Protest Directive, this decision together

with the Customs Form 19, should be mailed by your office to the

protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Freedom of Information Act

and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division