CLA-2 RR:TC:TE 960019 GGD
Ms. Laura Denny
CBT International, Inc.
110 West Ocean Boulevard, Suite 728
Long Beach, California 90802
RE: Cycling Shoes; External Surface Area of Upper (ESAU); Note 4
to Chapter 64; Additional U.S. Note 1(b) to Chapter 64;
High-Tech Sports, USA v. United States, Slip Op. 96-139,
Slip Op. 97-24
Dear Ms. Denny:
This letter is in response to your request of October 24,
1996, on behalf of your client, Answer Products, Inc., concerning
the classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) of men's cycling shoes
manufactured in Korea. A sample was submitted with your request.
FACTS:
The sample, identified by the model name "Accelerator," is a
cycling shoe of a type commonly worn by both sexes. The shoes
are designed for the sporting activity of mountain biking. The
outer soles are of rubber and/or plastics, and they incorporate
plates for the attachment of cleats. The shoe has an essentially
complete nylon textile upper, to which several large leather
overlays have been attached around the shoe's perimeter. Most of
the leather overlays are lasted under the insole and cemented to
the sole, contributing strength to the structure of the shoe and
providing support for the wearer's foot. The upper also has a
padded leather tongue, reinforcing patches of plastic and leather
near the heel, an ornamental plastic logo near the outer ankle, a
strip of textile fabric edging, and two straps with hook and loop -2-
fabric fasteners. When closed, each strap is secured to a
leather overlay, only one of which is lasted under and cemented
to the sole. The textile fabric portions of the upper are
clearly visible, although substantially covered by the leather
overlays, accessories, and reinforcements.
ISSUE:
Whether the nylon textile material or the leather material
predominates as the constituent material of the upper with the
greatest external surface area.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Among other merchandise, chapter 64, HTSUS, covers footwear,
gaiters and the like, and parts of such articles. With respect
to uppers which consist of two or more materials, note 4(a) to
chapter 64 states that:
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.
Subheading note 1(a) to chapter 64, HTSUS, states that "[f]or the
purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and
6404.11, the expression "sports footwear" applies only to:
Footwear which is designed for a sporting activity and has, or
has provision for the attachment of spikes, sprigs, cleats,
stops, clips, bars or the like." Additional U.S. Note 1(b) to
chapter 64, HTSUS, relates that "[t]he term "footwear for men,
youths and boys" covers footwear of American youths' size 11-1/2
and larger for males, and does not include footwear commonly worn
by both sexes." -3-
The EN to chapter 64, HTSUS, indicate that the constituent
material of the outer sole and of the upper, determines
classification in headings 6401 to 6405. The EN also provide
additional examples of features deemed accessories to, or
reinforcements for, the uppers, such as protective or ornamental
strips, other ornamentation (e.g., tassels, pompons or braid),
laces, and slide fasteners. Heading 6403, HTSUS, applies to
"Footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather." Heading 6404, HTSUS,
covers "Footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of textile materials."
The classification of several styles of hiking boots with
combination uppers consisting of leather and Cordura nylon
textile materials was recently examined by the Court of
International Trade (CIT) in High-Tech Sports, USA v. United
States (hereinafter Hi-Tech), Slip Op. 96-139, decided August 16,
1996, final judgment entered February 12, 1997, Slip Op. 97-24.
In Hi-Tech, the parties had stipulated that certain parts of all
of the footwear at issues were accessories or reinforcements,
including plastic hooks and eyelet stays, rubber kick plates, and
areas of overlap or rubber and/or plastic above the insole, metal
eyelets, logos, pull tabs, ankle patches, edging/binding, and D-rings. They also agreed that the tongues of the boots would not
be included in calculations of the external surface area of the
upper (ESAU). The CIT concluded, however, that for all of the
footwear at issue, Customs had incorrectly calculated the ESAU,
excluding as "accessories or reinforcements" numerous leather
portions held by the Court to be "constituent materials of the
upper."
Among other findings of fact, the Court observed that "[t]he
essential structure of each boot's upper is derived from its
leather components which contribute strength and durability...
and provide support to the wearer's foot and ankle." "The upper
is lasted or fastened to the sole by a cold cement process. The
only material intentionally cemented to the sole for purposes of
lasting is the leather portion of the upper....The Cordura is
specifically not used for strength or structural purposes, except
as it may serve to reinforce the leather against certain
stretching forces. The Cordura does not serve to last the uppers
to the sole of the boot." The Court went on to find that "[t]he
constituent material of the upper of each of the boots at
issue...is a combination of Cordura nylon and leather with
leather predominating." -4-
Customs had previously taken the position that the term
"accessories and reinforcements" included any material added to
an otherwise completed upper material, and calculations of the
ESAU had not depended upon whether certain pieces were fastened
to the sole. See Headquarters Ruling Letter (HQ) 088511, issued
April 15, 1992. Following the CIT's Hi-Tech rationale in this
case, we now consider the large leather overlays that are lasted
under and cemented to the sole of the cycling shoe to be
constituent materials of the upper, not accessories or
reinforcements. Despite the shoe's essentially complete textile
upper, these leather portions contribute structural strength to
the shoe and provide support for the foot. Since these
particular overlays are not similar to the examples of
accessories or reinforcements cited in note 4(a) and in the EN to
chapter 64, HTSUS, we find that the ESAU of the "Accelerator"
cycling shoe is predominantly leather, and that the shoes are
properly classified in heading 6403, HTSUS. Although the cycling
shoe is of a type commonly worn by both sexes, we find that use
by women of the shoes in men's sizes 8-1/2 and above is uncommon,
as that term has been traditionally defined. See De Vahni
International, Inc. v. United States, 66 Cust. Ct. 239, C.D. 4196
(1971). See also HQ 061446, dated November 17, 1981.
HOLDING:
The cycling shoe identified as the "Accelerator," if in
American size 8-1/2 or larger, is properly classified in
subheading 6403.19.4090, HTSUSA, which provides for "Footwear
with outer soles of rubber, plastics...and uppers of leather:
Sports footwear: Other: For men, youths and boys: Other: Other."
The applicable rate of duty is 6 percent ad valorem.
If in American size 8 or smaller, the "Accelerator" cycling
shoe is properly classified in subheading 6403.19.7060, HTSUSA,
the provision for "Footwear with outer soles of rubber,
plastics...and uppers of leather: Sports footwear: Other: For
other persons: Other, For women and misses: Other." The
applicable rate of duty is 4 percent ad valorem.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division