CLA-2 CO:R:C:M 950680 DFC
Mr. Don H. Choi
Vice President
Top Line Manufacturing Co.
Passaic Industrial Center
Building 1F, 90 Dayton Avenue
Passaic, NJ 07055
RE: Boots, Hiking; Footwear, protective; T.D. 92-32
Dear Mr. Choi:
In your three letters dated October 7, 1991, you inquired as
to the tariff classification under the Harmonized Tariff Schedule
of the United States (HTSUS), of certain hiking boots produced in
China or Korea. Samples were submitted for examination.
FACTS:
The sample boots have "camouflaged," cordura nylon uppers
with large amounts of leather overlays, heavy studded hiking
soles, large rubber toe bumpers, and EVA midsoles and wedges.
These boots will be worn primarily by hunters and hikers and also
by rural dwellers as general outdoor or bad weather footwear.
Item no. WP-540 has an eight inch high, heavy (1000 denier)
fabric upper with very extensive grain leather overlays and a
removable liner of neoprene rubber sandwiched between two layers
of nylon fabric. There is a label on the outside of the tongue
with the legend "Waterproof" and "Thinsulate-Thermal
Insulation," appearing thereon. The liner is held to the inside
of the upper by velcro-like fasteners.
Item no. 540 is the same as item WP-540 except that its
upper is seven inches high, not eight; has a "cambrelle lining,"
not a removable liner; and is labelled "Thinsulate-Thermal
Insulation," not "waterproof."
-2-
The "Thinsulate" insulation is relatively thin, but it is
sufficiently thick to make the boot considerably warmer in very
cold weather than an uninsulated boot.
Both item nos. WP-540 and 540 have thin plastic coatings on
their grain leather overlays.
Item no. C-57 has a four inch high, medium weight (420
denier) fabric upper. The lining is a brushed fabric and there
is a very thin layer of foam plastic about 1/32 inch thick, when
lightly compressed, between the upper and its lining. This is
about the minimum necessary for the upper to retain its shape.
Because it is lighter and, we assume, cheaper, we believe that,
of the three hiking boots, it will be the one most often used
simply as everyday casual footwear.
ISSUE:
1. Are the external surface areas of the plastic coated
leather overlays which constitute over 50% of the external
surface areas on the uppers of items WP-540 and 540 considered
to be leather for tariff purposes and thus described in
subheading 6404.19.15, HTSUS?
2. Are these boots considered "protective" footwear for
tariff purposes and thus described in subheading 6404.19.20,
HTSUS? Assuming the plastic coated leather is considered to be
leather and if they are "protective" should the boots be
classified in subheading 6404.19.15, HTSUS, or subheading
6404.19.20, HTSUS?
LAW AND ANALYSIS:
ISSUE NO. 1
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 taken in order]." In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.
-3-
Initially, in deciding the classification of footwear, a
determination must be made as to the constituent material of the
upper. Legal note (LN) 4(a) to Chapter 64, HTSUS, provides
guidance in making this determination. It 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, buckles, tabs,
eyelet stays or similar attachments.
When the uppers consist of two or more materials the
Harmonized Commodity Description and Coding System Explanatory
Notes (EN) to the HTSUS are instructive. The EN's although not
dispositive should be looked to for the proper interpretation of
the HTSUS. See 54 FR 35128 (August 23, 1989). General EN (D) to
Chapter 64 [pp.874-875] which is relevant here reads in part as
follows:
For the purposes of the classification of footwear in this
Chapter, the constituent material of the uppers must also be
taken into account. . . . If the upper consists of two or
more materials, classification is determined by the
constituent material which has the greatest external surface
area. . . ."
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. We note
that the nylon textile which is clearly a plausible upper
material predominates in external surface area of the upper when
the plastic coated leather "accessories" or reinforcements" are
removed in accord with LN 4(a) to Chapter 64, supra.
Consequently, the footwear is described within heading 6404,
HTSUS.
Based on visual examination, we have concluded that the
plastic coated leather overlays occupy over 50 percent of the
external surface areas of the uppers of items WP-450 and 540. We
must now determine whether the overlays are leather or plastic.
-4-
Inasmuch as the plastic coated leather overlays on the
uppers of items WP-540 and 540 are composed of different
materials, GRI 3(b) is applicable. It reads as follows:
Mixtures, composite goods consisting of different materials
or made up of different components, . . . which cannot be
classified by reference to 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character, insofar as this criterion is
applicable.
Clearly, the plastic covered leather overlays are composite
goods and will be classifiable as if they consist of the
component which gives them their essential character.
It is our observation that the essential character of the
plastic coated leather overlays is derived from their leather
components. The leather constitutes the bulk of the overlays
which add considerable strength to the upper while the plastic
covering or coating merely enhances the leather's durability and
water resistant qualities. In addition, the leather is more
valuable than the plastic coating.
ISSUE NO. 2
The specific issue here is whether the hiking boots are
classifiable under subheading 6404.19.15, HTSUS, or under
subheading 6404.19.20, HTSUS.
Subheading 6404.19.15, HTSUS, provides for footwear with
outer soles of rubber, plastics, leather or composition leather
and uppers of textile materials, 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.
Subheading 6404.19.20, HTSUS, provides for footwear with
outer soles of rubber, plastics, leather or composition leather
and uppers of textile materials, other 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.
-5-
GRI 6, HTSUS, reads as follows:
6. For legal purposes, the classification of goods in the
subheadings of a heading shall be determined according
to the terms of those subheadings and any related
subheading notes, and mutatis mutandis, to the above
rules, on the understanding that only subheadings at
the same level are comparable. For the purposes of
this rule, the relative section, chapter and subchapter
notes also apply, unless the context otherwise
requires.
By virtue of GRI 6, HTSUS, GRI 3(a), HTSUS, is relevant to
the classification of the hiking boots involved. It provides in
pertinent part as follows:
3. When, by application of rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description . . .
Based on our previous discussion, it is clear that items
nos. WP-540 and 540 are prima facie classifiable under
subheading 6404.19.15, HTSUS. Both items WP-540 and 540 also
are prima facie classifiable under subheading 6404.19.20,
HTSUS, because of the presence of thermal insulation in both
models and the presence of a waterproof liner in item WP-540.
In Headquarters Ruling Letter 086993 dated June 12, 1990,
Customs ruled that a combination leather and textile boot was
"more specifically described" in subheading 6404.19.20, HTSUS,
than under subheading 6404.19.15, HTSUS. The rationale for this
position was that the provision for protective footwear in
subheading 6404.19.20, HTSUS, is a use provision which is
considered to be a more specific description of the footwear than
the physical description of the footwear in subheading
6404.19.15, HTSUS.
-6-
It has come to our attention that our characterization of
the provision in subheading 6404.19.20, HTSUS, for "[f]ootwear
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" as a use provision is not entirely accurate.
It has been suggested that the provision is more accurately
described as both a "use" and "design" provision. We agree with
this suggestion and would now characterize the protective
provision in subheading 6404.19.20, HTSUS, as essentially a
"designed for use" provision.
Nonetheless. it remains our position that the provision for
protective footwear in subheading 6404.19.20, HTSUS, is more
specific than the provision in subheading 6404.19.15, HTSUS. It
is our observation that a requirement that the footwear be
designed to be worn over or in lieu of other footwear for
protective purposes is harder to satisfy than a requirement that
the footwear fit a particular physical description.
In the event that the provision for protective footwear in
subheading 6404.19.20, HTSUS, is not considered to be a more
specific provision than the provision for the physically
described footwear in subheading 6404.19.15, HTSUS, we submit
that the two provisions are equally specific. Consequently,
following GRI 3(c), HTSUS, classification under subheading
6404.19.20, HTSUS, is appropriate as " . . . the heading which
occurs last in numerical order among those which equally merit
consideration."
Item no. C-57 is not considered protective footwear for
tariff purposes since it is basically casual footwear and does
not provide any added degree of protection for the foot against
water or cold weather. Consequently, it is classifiable under
subheading 6404.19.15, HTSUS, as footwear with outer soles of
rubber, plastics, leather or composition leather and uppers of
textile materials, 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 LN 4(a)
to this chapter) is leather. See T.D. 92-32, copy enclosed, for
a more detailed explanation of our position regarding protective
footwear.
-7-
HOLDING:
The plastic coated overlays on the uppers of items WP-540
and 540 are considered leather for tariff purposes. These styles
are considered to be protective footwear. The provision for
protective footwear in subheading 6404.19.20, HTSUS, is more
specific than the provision for footwear with textile uppers
having an external surface area over 50% of leather in subheading
6404.19.15, HTSUS.
Item nos. WP-540 and 540 are dutiable at the rate of 37.5%
ad valorem under subheading 6404.19.20, HTSUS.
Item no. C-57 is dutiable at the rate of 10.5% ad valorem
under item 6404.19.15, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure
6cc AD NY seaport
1cc J. Sheridan NY seaport
1cc John Durant
1cc Legal Reference