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HQ 960019

April 10, 1997

CLA-2 RR:TC:TE 960019 GGD


TARIFF NO.: 6403.19.4090; 6403.19.7060

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.


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.


Whether the nylon textile material or the leather material predominates as the constituent material of the upper with the greatest external surface area.


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.


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.


John Durant, Director

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