HQ 960627

March 13, 1998

CLA-2 RR:CR:TE 960627 GGD

CATEGORY: Classification

TARIFF NO.: 6403.91.6080; 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.

3307-97-100089, 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

-2-

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.

-3-

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.

-4-

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.

-5-

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