United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 954564 - HQ 955362 > HQ 954782

Previous Ruling Next Ruling
HQ 954782




November 23, 1993

CLA-2 CO:R:C:M 954782 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.15; 6404.19.20

District Director of Customs
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

RE: Protest 0901-92-102079; Boots, textile and leather; Uppers, external surface area; Accessories and reinforcements; Delayed effective date; T.D.92-32; HRL's 086993, 088949

Dear Sir:

This is in response to the Application for Further Review of Protest 0901-92-102079, covering a shipment of certain hiking boots with GORE-TEX fabric inserts and leather and textile uppers produced in Italy. A sample of style 83308 was submitted for examination.

FACTS:

The entry covering styles 83308 (Men's Trekker) and 80607 (Women's Trekker) was liquidated on November 20, 1992, under subheading 6404.19.20, Harmonized Tariff Schedule of the United States (HTSUS). The protest was timely filed on December 18, 1992.

The protestant claims that style 83308 is classifiable under subheading 6403.91.60, HTSUS, while style 80607 is classifiable under subheading 6403.91.90, HTSUS.

Protestant also claims that the protest should be allowed because the footwear in issue is the same in all material respects as the footwear which was the subject of T.D. 92-32, and was entered prior to the effective date of that ruling.

ISSUE:

What is the constituent material which comprises the greatest external surface area of the boots' uppers?

Is the provision for protective footwear in subheading 6404.19.20, HTSUS, considered more specific for the hiking boots involved than the provision containing a physical description of merchandise set forth in subheading 6404.19.15, HTSUS?

Is the delayed effective date set out in T.D. 92-32 applicable to the subject entry?

LAW AND ANALYSIS:

The competing provisions are as follows:

6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather:
Other footwear:
6403.91 Covering the ankle:
Other:
6403.91.60 For men, youths and boys. . .

6403.91.90 For other persons. . . . . .

6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:

6404.19 Other:
6404.19.15 Footwear having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather . . . .

6404.19.20 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.

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.

Note 4(a) to Chapter 64, HTSUS, reads as follows:

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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). General EN (D) to Chapter 64, which is relevant here, reads in pertinent part as follows:

If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners.

Classification of footwear under heading 6403, HTSUS, requires that the external surface area of their uppers be predominantly of leather. However, classification of styles 83308 and 80607 under heading 6403, HTSUS, is precluded because the sample when measured in accord with note (4(a) to Chapter 64, HTSUS, supra, has an upper the external surface area of which is predominantly textile. Therefore, its classification is mandated under heading 6404, HTSUS. The single issue is whether styles 83308 and 80607 are classifiable under subheading 6404.19.15, HTSUS, or under subheading 6404.19.20, HTSUS.

Subheading 6404.19.15, HTSUS, provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note (4(a) to this chapter) is leather. The applicable rate of duty for this provision is 10.5% ad valorem.

Subheading 6404.19.20, HTSUS, provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, 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. The applicable rate of duty for this provision is 37.5% ad valorem.

The protestant did not make an alternative claim for classification under subheading 6404.19.15, HTSUS, and did not provide any evidence that the boot's external surface area of the upper (ESAU) was over 50% (i.e., leather when leather accessories and reinforcements (A-R) are included). However, per our "measurement" of the ESAU using a ruler, it is obvious that the upper of the sample is over 50% leather when the leather A-R are included.

By virtue of GRI 6, HTSUS, GRI 3(a), HTSUS, is relevant to the classification of styles 83308 and 80607. It provides in pertinent part as follows:

3. When, by application of rule 2(b) or for any other reason, goods are, prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description . . .

Styles 83308 and 80607 are prima facie classifiable under subheadings 6404.19.15, and 6404.19.20, HTSUS. These styles when measured including all leather accessories and reinforcements as required by subheading 6404.19.15, HTSUS, have uppers the external surface area of which is over 50% leather. Thus, they qualify for classification therein. However, these styles have uppers the external surface area of which is predominantly textile when measured in accordance with note 4(a) to Chapter 64 (no account being taken of accessories or reinforcements). Noting that these styles are advertised as protective footwear (having waterproof qualities), they qualify for classification under subheading 6404.19.20, HTSUS, as protective footwear.

In Headquarters Ruling Letter (HRL) 086993 dated June 12, 1990, Customs ruled that a combination leather and textile boot was "more specifically described" in subheading 6404.19.20, HTSUS, than under subheading 6404.19.15, HTSUS. The rationale for this position was that the provision for protective footwear in subheading 6404.19.20, HTSUS, is a use provision which is considered to be a more specific description of the footwear than the physical description of the footwear in subheading 6404.19.15, HTSUS.

It has come to our attention that our characterization of the provision in subheading 6404.19.20, HTSUS, for "[f]ootwear 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" as a use provision is not entirely accurate. It has been suggested that the provision is more accurately described as both a "use" and "design" provision. We have agreed with this suggestion and would not characterize the protective provision in subheading 6404.19.20, HTSUS, as essentially a "designed for use" provision.

Nonetheless, it remains our position that the provision for protective footwear in subheading 6404.19.20, HTSUS, is more specific than the provision in subheading 6404.19.15, HTSUS. It is our observation that a requirement that the footwear be designed to be worn over or in lieu of other footwear for protective purposes is harder to satisfy than a requirement that the footwear fit a particular physical description.

In the event that the provision for protective footwear in subheading 6404.19.20, HTSUS, is not considered to be a more specific provision than the provision for the physically described footwear in subheading 6404.19.15, HTSUS, we submit that the two provisions are equally specific. Consequently, following GRI 3(c), HTSUS, classification under subheading 6404.19.20, HTSUS, is appropriate as " . . . the heading which occurs last in numerical order among those which equally merit consideration." See HRL 088949 dated May 26, 1992.

In T.D. 92-32 Customs took the position that hiking boots with GORE-TEX liners are properly classifiable as protective footwear under subheading 6404.19.20, HTSUS, with duty at the rate of 37.5% ad valorem. However, the effective date of that determination was delayed for 90 days from the date of publication of the document in the Customs Bulletin which was April 15, 1992. Consequently, the delayed effective date of T.D. 93-32 applies to importations made prior to July 14, 1992.

Inasmuch as styles 83308 and 80607 are similar to the Vasque Voyager hiking boots which were the subject of T.D. 92-32, with respect to their "protective" qualities (i.e., having GORE-TEX inserts), it is our position that T.D. 92-32 governs the effective date of this ruling. Thus, these styles entered before July 15, 1992, must be considered "non-protective" footwear which mandates their classification under subheading 6404.19.15, HTSUS.

HOLDING:

The constituent material which comprises the greatest external surface area of the subject boots' uppers is textile material.

The provision for protective footwear in subheading 6404.19.20, HTSUS, is considered more specific for the hiking boots involved than the provision containing a physical description of merchandise set forth in subheading 6404.19.15, HTSUS.

Since the classification of styles 83308 and 80607 is governed by the result reached in T.D. 92-32, the entry covered by this protest which was made prior to July 14, 1992, should be reliquidated at the rate of 10.5% ad valorem under subheading 6404.19.15, HTSUS.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, 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 the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: