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NY 859723

FEB 13, 1991

CLA-2-64:S:N:N3D:346 SM 859723

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 6404.19

Ms. Martha Ward
Sears Department 733 Imp.
Sears Tower
Chicago, Illinois 60684

RE: The tariff classification and marking of hiking boots from Korea.

Dear Ms. Ward:

In your letter dated January 11, 1991, received here on January 18, 1991, you requested a classification ruling concerning the measurement of the external surface of the upper of a sample.

The sample, Stock #86825, is a light-weight hiking boot with a nylon/leather upper and a studded rubber sole.

You specifically point out: "After removing the leather portions of the upper, we found:

1. The nylon material only extends a minimum past the top of the heel stabilizer and not to the sole.

2. Under the 'ELKWOODS' label, the nylon material covering the collar exterior is a separate piece stitched to the nylon material which covers the rest of the shoe (note the design of the nylon materials does not flow in the same directions)."

In other words, the woven nylon fabric of the upper in the rear of the boot ends about two inches above where it would normally turn under the insole. In the rest of the upper, the same woven nylon fabric continues to the insole, but in some cases the nylon hidden under the leather is a separate piece stitched to the rest of the fabric and in other cases is partially exposed but has a different bias (angle of the weave) than the main exposed area of woven fabrics.

You specifically ask:

"With regard to our findings in Point 1, would the leather covering the counter be considered part of the upper material?"

Our answer is yes. To be more precise, all of the leather pieces in question, whether or not it is a portion that covers the fabric, should be included.

You further ask:

"Would the nylon materials of Point 2 still be considered as part of the upper, or would the upper in this area consist of the nylon and the leather that covers the stitching; how would this then affect the toe box?"

Our answer is that, except for the leather covering the counter, all of the other leather pieces (and the rubber and metal on top of them), should be entirely removed to determine the upper's external surface (exclusive of accessories and reinforcements).

You finally state:

"We would appreciate knowing how classification was determined for this boot so we may properly classify similar footwear in the future."

The "rules of thumb", we applied here were:

1. Include or exclude a given piece as a whole depending on whether or not it will mostly expose a surface which would be implausible as upper material for that shoe.

2. The fact that the same material appears as part of the exposed surface of the upper makes it clear that that material is a plausible upper material for the shoe. We disregard the fact that the material may be slightly different, e.g., having a different bias, than the other pieces.

On this basis, it is clear to us that the statement on the enclosed "Attached to Footwear Invoice" that the "Percent of External Surface Area of Upper (Excluding Reinforcements and Accessories)" is "54% Leather" is false. The enclosed report from "Sears Department 817", dated 12/12/90, which states "the upper surface is 76.3% fabric and 23.7% leather" appear to be correct and based on the correct interpretations. We do note that the statement that, including accessories and reinforcements, "the upper surface is 62.3% leather, 20.6% fabric and rubber 17.3%" is probably true, but it is misleading. When a shoe has an upper which is predominately of textile materials, the HTS classification is then affected by the upper's external surface including only leather accessories and reinforcements. In this case, the percent of external surface so measured is probably about 75% leather, not 62.3% leather.

Your boot will be classified in HTS 6404.19 as footwear, in which the upper's external surface is predominately textile materials (note that an accessory of reinforcement stitched on top of another material is not part of the upper's external surface but the material hidden underneath is); in which the outer sole's external surface is predominately rubber and/or plastics; and which is other than athletic footwear.

We note that the external surface of the upper is well over 50% leather when leather accessories and reinforcements are included. However, we are not able to issue a binding ruling as to the eight digit classification (and thus its rate of duty), because you have not submitted sufficient information regarding whether or not this item was designed to be worn in lieu of other footwear as a protection against water or against cold or inclement weather and because the Customs Service criteria on this issue will not form a "clear precedent" until several requests for rulings involving this issue presently pending at Customs Headquarters, are answered.

We note that the only country of origin marking on the sample is on the reverse side of a 1 inch by 1/4 inch label sewn into the edge of the side of the tongue about 5 inches down from the top of the tongue. We do not consider this marking to be "conspicuous" and thus, if imported with only this marking, release would not be allowed due to the NLM.

Any questions, please call NIS J. Sheridan at (2l2) 466- 5889.

This partial ruling is being issued under the provisions of Section l77 of the Customs Regulations (l9 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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