CLA-2 RR:CR:TE 960627 GGD
Port Director
U.S. Customs Service
300 Second Avenue South
Great Falls, Montana 59405
RE: Decision on Application for Further Review of Protest No.
3307-97-100089, filed January 15, 1997, concerning the
classification of hiking boots; High-Tech Sports, USA v.
United States, Slip Op. 96-139, Slip Op. 97-24
Dear Sir:
This is a decision on a protest timely filed on January 15,
1997, against your decision in the classification and liquidation
of an entry of hiking boots, entered in August 1992.
FACTS:
You classified the first of two styles of hiking boots,
style number 7566, under subheading 6404.19.2030, HTSUSA, the
provision 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
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, For men," with an applicable duty rate of 37.5
percent ad valorem.
You classified the second of the two styles, style number
7567, under subheading 6404.19.2060, HTSUSA, the provision for
"Footwear with outer soles of rubber, plastics, leather or
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composition leather and uppers of textile materials: Footwear
with outer soles of rubber or plastics: 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, For women," also with an applicable duty rate of 37.5
percent ad valorem.
The protestant claims that style no. 7566 should be
classified (in 1992) in subheading 6403.91.6080 (The statistical
suffix in 1998 is 6403.91.6075.), HTSUSA, the provision 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, Other:
Other: For men: Other," with an applicable duty rate of 8.5
percent ad valorem.
The protestant claims that style no. 7567 should be
classified (in 1992) in subheading 6403.91.9040 (The statistical
suffix in 1998 is 6403.91.9045.), HTSUSA, the provision for
"Footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather: Other footwear:
Covering the ankle: Other: For other persons, Other: For women:
Other," with an applicable duty rate of 10 percent ad valorem.
Both styles of the footwear at issue, style nos. 7566 and
7567, are lightweight hiking boots with uppers that are
essentially composed of woven nylon and suede-out split leather.
A Customs laboratory report dated October 7, 1997, describes the
sample analyzed as a size 8 hiking boot with a rubber/plastic
sole. The external surface area of the upper is composed of a
leather toe, side, and heel counter which are pieced to the
textile upper and lasted to the sole. Leather stripes and
overlays are attached to the leather lasted pieces, and to the
textile toe, sides, ankle, and heel pieces. The textile "Gore-Tex" label and the portion of the rubber/plastic sole that
overlaps the upper are considered accessories and reinforcements.
Following the rationale of the decision 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,
the Customs laboratory found that the external surface area of
the upper (ESAU), excluding accessories and reinforcements, was
76 percent leather and 24 percent textile.
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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, HTS, 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.
The EN to chapter 64, HTS, 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, HTS, applies to
"Footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather." Heading 6404, HTS,
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 examined by the CIT in the High-Tech case.
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In Hi-Tech, the parties had stipulated that certain parts of all
of the footwear at issue were accessories or reinforcements,
including plastic hooks and eyelet stays, rubber kick plates, and
areas of overlap of 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 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."
Prior to the Hi-Tech decision, Customs had taken the
position that the term "accessories and reinforcements" included
any material added to an otherwise completed upper material, and
that calculations of the ESAU did not depend upon whether certain
pieces were fastened to the sole. See Headquarters Ruling Letter
(HQ) 088511, issued April 15, 1992. In HQ 960019, however,
issued April 10, 1997, this office followed the CIT's Hi-Tech
rationale and classified cycling shoes with essentially complete
nylon textile uppers under heading 6403, HTS, on the basis that
the shoes' leather overlays - which were lasted under and
cemented to the sole of the shoes - were constituent materials of
the upper (not accessories or reinforcements) which contributed
structural strength to the shoe and provided support for the
foot. We similarly find in this case that, since 76 percent of
the external surface area of the upper of each style is composed
of leather pieces that are either lasted to the sole or are
attached to leather pieces that are lasted to the sole, the ESAU
of style nos. 7566 and 7567, is predominantly leather. The
hiking boots are properly classified under heading 6403, HTS.
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HOLDING:
The lightweight hiking boot identified by style no. 7566 is
classified in subheading 6403.91.6080, HTSUSA, the provision for
"Footwear with outer soles of rubber, plastics...and uppers of
leather: Other footwear: Covering the ankle: Other: For men,
youths and boys, Other: Other: For men: Other." The general
column one duty rate is 8.5 percent ad valorem.
The hiking boot identified by style no. 7567 is classified
in subheading 6403.91.9040, HTSUSA, the provision for "Footwear
with outer soles of rubber, plastics...and uppers of leather:
Other footwear: Covering the ankle: Other: For other persons,
Other: For women: Other." The general column one duty rate is 10
percent ad valorem.
Since reclassification of the merchandise as indicated above
will result in a lower rate of duty than claimed, you are
instructed to allow the protest in full. A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision 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 to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division