CLA-2 CO:R:C:M 952228 DFC
District Director of Customs
Suite 244
4233 Canal Street
New Orleans, Louisiana 70130-2341
RE: Protest no. 2002-92-100270; Boots, textile and leather;
Uppers, external surface area; Footwear, athletic;
Accessories and reinforcements; Delayed effective date;
T.D. 92-32
Dear Sir:
This is in response to the Application for Further Review of
Protest no. 2002-92-100270 dated March 12, 1992, covering
shipments of hiking boots produced in Korea. A sample was
submitted for examination.
FACTS:
The sample boot designated on the invoice as a "6 eyelet
leather Bean boot" is commonly called a "Trader Bay Hiker."
The sole and lower portion of the high top boot are molded from
rubber [duck bottom] and stitched to the remaining upper portion
which has an external surface area of textile and leather
overlaying textile material. The protestant indicates that
leather exterior covers approximately 90-92% of the interior
materials leaving only a small area, approximately 8-10%, of the
outer textile portion of the interior lining revealed.
The entries covering these hiking boots were liquidated
under subheading 6402.91.50, Harmonized Tariff Schedule of the
United States (HTSUS), as other footwear with outer soles and
uppers of rubber or plastics, other footwear, covering the ankle,
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. The applicable rate of duty for
this provision is 37.5% ad valorem.
-2-
The protestant maintains that the hiking boots are properly
classifiable under subheading 6403.91.60, HTSUS, 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. The applicable rate of duty for this
provision is 8.5% ad valorem.
In the alternative protestant suggests that the hiking boots
are classifiable under subheading 6404.11.20, HTSUS, as footwear
with outer soles of rubber, plastics, leather or composition
leather and uppers of textile materials, footwear with outer
soles of rubber or plastics, sports footwear, tennis shoes,
basketball shoes, gym shoes, training shoes and the like, 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
applicable rate of duty for this provision is 10.5% ad valorem.
If the hiking boots are not classified as claimed above,
protestant asserts another alternative claim that they are
classifiable under subheading 6404.19.15, HTSUS, as 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 applicable rate of duty for
this provision is 10.5% ad valorem.
ISSUE:
Are the leather pieces overlaying the textile material of
the upper considered accessories or reinforcements within the
purview of note 4(a) to Chapter 64?
What is the constituent material which comprises the
greatest external surface area of the boot's upper?
Are the hiking boots considered "athletic footwear" for
purposes of classification under subheading 6404.11.20, HTSUS?
Is the provision for protective footwear in subheading
6404.19.20, HTSUS, considered more specific for the hiking boots
involved than the provision containing a physical description of
merchandise set forth in subheading 6404.19.15, HTSUS?
-3-
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 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. GRI 6,
HTSUS, requires that the GRI's be applied at the subheading level
on the understanding that only subheadings at the same level are
comparable. The GRI's apply in the same manner when comparing
subheadings within a heading.
Note 4(a) to Chapter 64, HTSUS, reads as follows:
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 (EN) to the HTSUS, 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,
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.
Your classification of the hiking boot was based on a
measurement of the external surface area of the boot's upper
(ESAU) by a Sears' laboratory. The results of that measurement
are listed as follows:
With Overlays Without Overlays
Leather 51.1% 33.5%
Rubber 43.8% 42.1%
Textile 5.1% 24.4%
-4-
Protestant asserts that it can be deduced from the above
measurements that the exterior leather around the ankle collar
and the pieced leather portions on either side of the boot were
incorrectly excluded as ESAU and with their addition the ESAU
would be 51.1% leather which would result in classification of
the boot under subheading 6403.91.60, HTSUS.
Protestant maintains that the leather areas excluded by
Customs are not accessories or reinforcements as defined in the
EN's or chapter notes and should not be included in the
measurement of the ESAU. Further, the examples of accessories
and reinforcements set forth in Note 4(a) to Chapter 64, HTSUS,
supra, and General EN (D) are additions to an already completed
boot that are added for style or reinforcement purposes. The
leather in the hiking boot is essential for the design of the
boot for without it the boot would not be complete. Clearly, the
leather here does not possess the characteristics of the examples
of accessories or reinforcements nor does it meet the common
meaning of the terms "accessories and reinforcements."
Customs has taken 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, even if
not the best material. While we agree that the leather overlays
are not accessories, we do not agree with protestant's contention
that they are not reinforcements. Protestant defines the term
"reinforcement" as an augmentation or addition of strength to
something that has a pre-existing strength. Thus, with the boot
in issue, the ankle would have little or no support without the
leather, and consequently, the leather is not a reinforcement but
it is the prime source of support to the ankle. We agree with
protestant's definition of the term "reinforcement". However, in
this case the upper without the leather overlays [Thinsulate
material, consisting of plastic foam backed by gluing on both
sides with fabric and a plastic foam collar] is almost 3/4 inch
thick and most certainly does provide at least minimal support
for the ankle. Further, we do not agree with protestant's claim
that leather provides the initial support needed for the boot to
satisfy its designed use. It appears that the overlayed material
provides the initial support to the ankle while the leather
overlays perform a reinforcing role in augmenting the support
provided by the overlayed materials.
The protestant states that the textile material being an
integral part of the interior lining of the shoe has no effect on
the calculation of the ESAU. Further, materials of which only a
de minimis portion are exposed on the exterior of the upper
should be excluded from the calculation of the ESAU. We regard
the so-called interior lining material which appears as a portion
-5-
of the ESAU before the overlays are removed to be a plausible
upper material. The de minimis rule has no application here.
The presence of textile material on the external surface of the
upper is not an inadvertence. It was placed there to increase
the "breathability" of the boot and for stylistic reasons e.g.,
increased salability. Varsity Watch Company v. United States, 34
CCPA 155, C.A.D. 359 (1947;
Corporacion Argentina de Productores de Carnes v. United States,
32 CCPA 175, C.A.D. 304 9(1945).
Protestant claims that the textile material appearing on the
external surface of the boot's upper is an integral part of the
interior lining of the shoe and has no effect on calculation of
the ESAU. Further, it is claimed that the lining material is
specifically excluded from calculation of the ESAU by virtue of
General EN (D) to Chapter 64, HTSUS, which provides in part that
"[t]he constituent material of any lining has no effect on
classification." Inasmuch as the so-called lining material
appears as part of the external surface area of the upper [more
than a de minimis amount] we would not exclude it from
calculation of the ESAU because it is in fact plausible upper
material.
Protestant makes an alternative claim that the hiking boots
should be considered athletic footwear for tariff purposes and
classified under subheading 6404.11.20, HTSUS.
In T.D. 92-32 (16 Cust. Bull. 4), responding to the claim of
the importers that the hiking/backpacking boot is classifiable as
athletic footwear, Customs stated at page 18 the following:
In this instance the hiking/backpacking boot, although
used in the sport of backpacking, fails to qualify as
athletic footwear within subheading 6404.11 because it
is not "like" tennis shoes, basketball shoes, gym
shoes, and training shoes. Specifically, hiking boots
are heavier than the listed exemplars of athletic
footwear. This slows the wearer's running speed
substantially. All the exemplars are used in sports
which require fast footwork or extensive running.
Additionally, the exemplars are not constructed so as
to protect the foot against rough and rocky terrain as
are hiking boots. For these reasons we conclude that
the hiking/backpacking boot is not classifiable under
subheading 6404.11, as claimed.
-6-
Protestant maintains that the reasons stated above for not
considering hiking boots as athletic footwear are unsubstantiated
and incorrect for the following reasons:
1. Customs cited no evidence that hiking boots are heavier
than the exemplars and, if they are, that such weight
would be sufficient to substantially slow the wearers
running speed. There appears to be several high top
basketball shoes that weigh approximately the same or
even more than some hiking boots.
2. Customs made the statement that all the exemplars are
used in sports that require fast footwork or extensive
running. Nowhere does this qualification appear in the
tariff schedule or the applicable notes. There are
other uses, apart from running and fast footwork, for
the exemplars such as training shoes which are often
used for such athletic activities as weight lifting.
3. Weight cannot be used as an attribute to exclude hiking
boots when the weight difference between the exemplars
is often times drastic, such as the weight difference
between ultra light shoes designed for long distance
running and sturdy high top basketball shoes.
4. The claim by Customs that the exemplars are not
constructed so as to protect the foot against rough and
rocky terrain does not appear to be an accurate
statement. Running shoes designed for outdoor use are
constructed to give their wearer comfort when running
on rough terrain such as gravel. Further, high top
basketball shoes offer the same support and protection
to the wearer's ankle to assist the wearer in making
sharp turns.
5. Webster's Third New International Dictionary (1986)
defines the word "sneaker" as "3: a shoe usu. of canvas
with a pliable rubber sole worn esp. for sports or
hiking...." The definition of gym shoe includes shoes
made for hiking. Clearly, if the common meaning of one
of the exemplars includes shoes used for hiking then a
hiking boot must be considered to be "like" the
exemplars and be classified as athletic footwear.
-7-
It is our observation that hiking boots [especially the
sample] are heavier than the listed exemplars and their weight is
sufficient to substantially slow the wearers' running speed.
This is especially so when compared with the wearer's speed when
wearing the type of footwear represented by the exemplars.
However, it should be noted that weight alone is not the sole
factor in determining whether a shoe is athletic footwear for
tariff purposes. An examination of the sample reveals that it is
not "like" the exemplars in that it differs from them in several
significant respects exclusive of weight. First, the sample boot
has a steel shank in its sole which is not present in any of the
listed exemplars. Second, the sample boot has a waterproof "duck
bottom" which is a type of construction not found in the
exemplars. Third, the sample boot has a distinct heel which is
not present in footwear represented by the exemplars.
We agree with the protestant that there is nothing in the
EN's or the tariff schedule which explicitly provides that all
the exemplars of athletic footwear are used in sports that
require fast footwear or extensive running. However, the use of
the term "and the like" in Additional U.S. Note 2 requires us to
make a determination as to the type of footwear which is ejusdem
generis with tennis shoes, basketball shoes, gym shoes, and
training shoes. There is no doubt that the exemplars including
training shoes are principally used in sports that require fast
footwork or extensive running.
Protestant asserts that Customs is inaccurate in its claim
that the exemplars are not constructed to protect the foot
against rough and rocky terrain. It is our view that while
running shoes designed for outdoor use provide wearer comfort
when running on gravel, they certainly do not provide the kind of
protection needed for the foot when running across rough terrain
[not just gravel] where one encounters rocks, branches, water,
mud, etc. The exemplars are definitely not designed for such
use.
The definition of the word "sneaker" cited by the
protestant does not persuade us that hiking boots are "like' "the
exemplars. Certainly, one can wear sneakers for hiking but it is
also true that one can also wear oxfords. However, neither
sneakers nor oxfords are designed for use in hiking over rough
terrain as are hiking boots. We note that the word "hiking" as
used in the definition can be easily equated with the word
"walking" which we believe more closely resembles reality with
respect to the use of "sneakers."
-8-
The final alternative claim by the protestant is that
pursuant to GRI 3(a) the hiking boots are more specifically
provided for under subheading 6404.19.15, HTSUS, than under
subheading 6404.19.20, HTSUS, as footwear with outer soles of
rubber, plastic, 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.
GRI 3(a), HTSUS, which is relevant here, 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 . . .
Protestant asserts that the hiking boots could arguably be
classified under either subheading 6404.19.15, HTSUS, or
subheading 6404.19.20, HTSUS, which are equally indented
provisions. However, the hiking boots are more specifically
provided for under subheading 6404.19.15, HTSUS, and, therefore
pursuant to GRI 3(a) should be classified therein. The rationale
for this claim is that subheading 6404.19.15, HTSUS, contains a
rather technical surface area description covering very specific
types of shoes whereas subheading 6404.19.20, HTSUS, covers any
type of protective shoe, which could cover a broad array of shoes
whose surface areas contain any numerous types of materials.
It is clear that the hiking boots are prima facie
classifiable under subheading 6404.19.15, HTSUS. They are also
prima facie classifiable under subheading 6404.19.20, HTSUS, as
protective footwear noting the presence of their vulcanized
rubber foot portions and their "Thinsulate" linings.
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 provisions 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.
-9-
It has come to Customs 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 have agreed
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 provision 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."
When the leather pieces were removed from the upper of the
sample, we found that the same textile outer material that
appears in the four spaces between the leather pieces prior to
their removal, constituted all of the ESAU above the
rubber/plastic bottom portion of the boot, with the exception of
the small strip of textile topline trim. In our opinion this
means that all of the leather should be considered "accessories
or reinforcements." Therefore, using Sears' own laboratory
report, this boot has an ESAU, with no account being taken of
accessories or reinforcements, of 57.9% textile and 42.1%
rubber/plastic.
In T.D. 92-32 Customs took the position that hiking boots
with GORE-TEX liners are properly classifiable as protective
footwear under subheading 6404.19.20, HTSUS, with duty at the
rate of 37.5% ad valorem. However, the effective date of that
determination was delayed for 90 days from the date of
publication of the document in the Customs Bulletin which was
April 15, 1992. Consequently, the delayed effective date of T.D.
92-32 applies to importations made prior to July 15, 1992.
-10-
In a supplemental submission dated May 24, 1993, counsel for
the protestant asserts that the effective date of T.D. 92-32,
June 23, 1992, governs the effective date of the ruling in the
instant case, and the protest should be allowed on that basis.
Counsel states that T.D. 92-32 covers all affected parties
and pursuant to 19 C.F.R. 177.9(e)(3) all affected parties should
be afforded the effects of this delay. In recent Headquarters's
rulings issued subsequent to T.D 92-32, Customs took the position
that affected parties are those parties who have imported boots
which are similar to the hiking boots in T.D. 92-32 with respect
to their "protective" qualities. Counsel argues that because the
boots in issue are very similar to the boots in T.D. 92-32 and
because Customs has held that they have the same protective
qualities, the effective date of T.D. 92-32 also governs the
effective date of the instant boots which were entered for
consumption prior to June 23, 1992.
Counsel cites HRL's 089929 and 950202 dated April 24 and 25,
1992, respectively, as examples of rulings in which Customs
granted a delayed effective date to entries of hiking boots which
were similar to the hiking boots ruled on in T.D. 92-32 with
respect to their "protective" qualities.
The hiking boots which were the subject of the cited rulings
were similar in their "protective" qualities to the hiking boots
which were the subject of T.D. 92-32 in that they possessed
waterproof liners. The hiking boots in issue do not derive their
"protective" qualities from waterproof liners but rather from
their "duck bottoms" and "Thinsulate" linings. Consequently,
these hiking boots cannot be said to be similar in their
"protective" qualities to the hiking boots which were the subject
of T.D. 92-32. Consequently, entries of the "Trader Bay Hikers"
are not entitled to the delayed effective date set out in T.D.
92-32.
HOLDING:
The leather pieces overlaying the textile material of the
upper of the boot are considered reinforcements within the
meaning of note 4(a) to Chapter 64, HTSUS.
The constituent material which comprises the greatest
external surface area of the boot's upper is textile material.
Hiking boots are not considered "athletic footwear" for
purposes of classification under subheading 6404.11.20, HTSUS.
-11-
The provision for protective footwear in subheading
6404.19.20, HTSUS, is considered more specific for the hiking
boots involved than the provision containing a physical
description of merchandise set forth in subheading 6404.19.15,
HTSUS.
The hiking boots are dutiable as liquidated at the rate of
37.5% ad valorem under subheading 6404.19.20, HTSUS. Inasmuch as
the boots' "protective" features are derived from the boot's
"duck bottoms" and "Thinsulate" linings rather than a waterproof
liner, the protestant is not entitled to liquidation at the rate
of 10.5% ad valorem prior to July 15, 1992. See T.D. 92-32 (16
Cust. Bull. 25).
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, the protest should be
denied in full. A copy of this decision should be attached to
the Customs Form 19, and mailed to the protestant, through
counsel, as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division