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HQ 960290

March 13, 1998

CLA-2 RR:CR:TE 960290 GGD


TARIFF NO.: 6403.91.9040

Port Director
U.S. Customs Service
300 Second Avenue South
Great Falls, Montana 59405

RE: Decision on Application for Further Review of Protest No. 3307-96-100056, filed October 24, 1996, 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 October 24, 1996, against your decision in the classification and liquidation of two entries of hiking boots, entered in July and October 1992.


You classified the merchandise under subheading 6404.19.2060, 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 women," with an applicable duty rate of 37.5 percent ad valorem.

The protestant claims that the goods 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.

The footwear at issue, identified by style number 7567, is a lightweight hiking boot with an upper that is 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.


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, 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. 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 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 no. 7567 is predominantly leather. The hiking boots are properly classified under heading 6403, HTS.


The lightweight 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.


John Durant, Director
Commercial Rulings Division

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