CLA-2 CO:R:C:M 088511 NLP
Mr. Stephen S. Spraitzar
Law Offices of George R. Tuttle, P.C
3 Embarcadero Center, Suite 1160
San Francisco, CA 94111
RE: Hiking Boots; constituent material of the upper;
external surface area of upper; Explanatory Note D to
Chapter 64; Legal Note 4(a) to Chapter 64; subheading
6403.91.60; accessories and reinforcements; HRL 083727; HRL
087430; HRL 081305
Dear Mr. Spraitzar:
This is in response to your letters dated January 2, 1991,
November 19, 1991, and March 3, 1992, on behalf of Hi-Tec Sports,
U.S.A., Inc., concerning the tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS) of hiking
boots. A sample was submitted for our examination.
FACTS:
The merchandise at issue is the "Rainier" style men's
hiking boots that will be manufactured in Korea and/or the
People's Republic of China. The hiking boot's upper is made of
leather and 1000 denier nylon. The upper has a rubber toe
bumper, a suede leather toe-over patch, a suede heel counter, a
plastic heel stabilizer, a padded tongue, and a leather covered
lace closure with five eyelets and two plastic hooks on each
side. In addition, the upper consists of a heavily padded suede
over the ankle collar. A leather configuration on each side of
the upper depicts the Hi-Tec logo. The hiking boot has a
cemented EVA wedge mid-sole and a high carbon lug outsole. A
steel shank has been inserted into the sole of the boot.
You claim that the leather constitutes the constituent
material having the greatest external surface of the upper.
Accordingly, the hiking boot is classified in subheading
6403.91.60, HTSUS, which provides for 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.
ISSUE:
What is the constituent material of the uppers of the
hiking boots and under what subheading are they classified.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI'S). GRI 1 provides
that classification shall be determined first in accordance with
the terms of the headings of the tariff and any relative section
or chapter notes.
You maintain that the external surface area of the uppers of
the hiking boots is leather and therefore, the hiking boots are
classified in subheading 6403.91.60, HTSUS. You assert that the
leather portions of the upper are not accessories and
reinforcements because the leather is essential for making an
upper that is suitable for the backpacking terrain. Since the
nylon fabric, which is visible on some parts of the upper, would
not be durable enough to withstand the ruggedness of the backpack
terrain it cannot be considered the upper material of the boot.
Moreover, the leather portion of the upper is more than an
"accessory" or "reinforcement" because the leather portion is not
similar to any of the exemplars in Legal Note 4(a) to Chapter 64,
HTSUS. Specifically, items such as ankle patches, edging,
buckles or tabs are attached to the upper and are not integral
parts of the uppers, as opposed to the leather component of the
footwear which is an integral part of the upper.
Furthermore, you claim that to be considered an upper, a
material must be attached to the sole unit and if it is not
attached to the sole unit then it is an accessory to that part of
the upper which is permanently attached to the sole unit. For
example, in the subject hiking boots, from the seam, the leather
material extends down and is lasted to the midsole and upper via
the board cement last method. Therefore, the leather material is
permanently attached to the sole by gluing. The nylon material
also extends down and is tucked under the insole and is pinched
against the leather. However, the nylon material is not
permanently attached to the insole by cementing, tacking,
stapling, etc. You contend that this construction is not
designed to reinforce the construction of the boot and the nylon
serves no structural purpose. Thus, this construction supports
the position that the leather is the constituent material of the
upper.
Additionally, you cite that Headquarters Ruling Letter (HRL)
083727 dated February 12, 1990, supports your position that the
upper of the "Rainier" is leather. This ruling dealt with the
issue of whether, if an outer layer of material completely covers
and hides another surface, should the outer layer be considered a
part of the external surface of the upper, or should the hidden
material be considered to be part of the external surface area of
the upper. HRL 083727 stated that a piece of material which does
not constitute a visible part of the external surface of the
upper of the finished shoe at any point should not be considered
to be part of the external surface of the upper. It is your
claim that a consumer, when viewing the hiking boot, is going to
view it as being made primarily of leather because most of the
nylon is hidden. Thus, the hidden portion of the nylon should
not be considered to be part of the external surface area of the
upper.
In HRL 087430 dated October 22, 1990, Customs took the
position that a layer which comprises all of the external surface
of the upper is in fact the external surface of the upper even if
there is a plausible upper material underneath. In a shoe which
has an upper comprised of several layers of material, the top
layer will be considered the external surface of the upper when
that layer covers the whole surface of the upper. However, in
the instant case, the textile base is not covered in full by the
leather material and is a visible component of the surface area
of the hiking boots. Therefore, based on the above standard, the
leather is not considered the upper material of the hiking
boots.
The issue to be decided is what is the external surface area
of the uppers of the hiking boots. Legal Note 4 (a) to Chapter
64, HTSUS, provides the following:
(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.
It is our position that the term "accessories and
reinforcements," although not fully defined, includes any
additional material added to an otherwise completed upper
material. For example, leather or vinyl are plausible upper
materials, however, foam/tricot is normally a lining material and
is not a plausible upper material. Thus, the next issue to
determine is what constitutes the upper material of the subject
hiking boots.
In determining whether the nylon is upper material in the
subject hiking boots, the fact that it is not cemented to the
insole is taken into consideration. However, it does not negate
that the nylon is an upper material. First, the HTSUS does not
require that the upper be cemented or attached permanently to
the insole of the footwear. Second, this material is a plausible
upper material. Third, a substantial portion of it is exposed on
the finished boot. Fourth, while the textile material is not
cemented to the insole, it does come under the insole.
Therefore, if the leather is pulled away from the textile
material, the textile does not just hang loose; it must be pulled
away by hand for it to hang loose. Thus, if the leather was
pulled away, the textile material would still cover the top and
sides of the foot.
After examining the boot, it is clear that certain parts of
the upper are excluded as accessories or reinforcements. The
excluded parts of the upper are:
1. The separate stitched on textile tongue and shoelaces,
pursuant to HRL 081305, dated March 10, 1988.
2. The rubber toe bumper because it is merely for
reinforcement.
3. The "U" shaped leather piece which goes around the
eyelets and is attached at both eyelet stays. This
piece only serves as an anchor for the eyelets and its
removal exposes additional area of the textile. Eyelet
stays are specifically cited as an exemplar of an
accessory or reinforcement in Note 4(a) to Chapter 64,
HTSUS.
4. The leather configuration on each side of the boot that
somewhat resembles an arrow. These are ornamental
in nature.
Though the other leather pieces are cemented on, we do not
interpret "external surface are of the upper" to depend on what
pieces are cemented to the insole. The other leather pieces are
also sewn onto a plausible textile upper material. It is our
position that the leather pieces are reinforcements on an
otherwise plausible textile upper material. Therefore, after
removing all the accessories and reinforcements, the constituent
material of the upper is the textile and the hiking boot is
classified in subheading 6404.19.15, HTSUS.
HOLDING:
The "Rainier" hiking boot is classifiable in subheading
6404.19.15, HTSUS, which provides for footwear with outer soles
of rubber, plastics, leather or composition leather and uppers of
textile materials, footwear with outer soles of rubber or
plastics, other, footwear 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 rate of duty is 10.5 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division