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HQ 965818




November 6, 2002

CLA-2:RR:CR:TE 965818 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.90; 6404.19.90

Leslie Alan Glick, Esq.
Porter Wright Morris & Arthur, LLP
1919 Pennsylvania Avenue, N.W.
Suite 500
Washington, D.C. 20006-3434

RE: Petition by Domestic Interested Party; ESAU; Accessories and Reinforcements; Textile Overlays

Dear Mr. Glick:

This letter is in response to your request for classification, dated August 7, 2002, filed pursuant to 19 U.S.C. § 1516, on behalf of your client, Rocky Shoes & Boots, Inc. In the request you ask Customs to review and clarify two rulings issued by Customs classifying boots for hiking, hunting, and other outdoor activities, under the Harmonized Tariff Schedule of the United States Annotated, (HTSUSA). In accordance with Section 175.1, Customs Regulations (19 CFR 175.1), this letter constitutes Customs response to your request.

FACTS:

You submitted a sample of a boot manufactured by your client, labeled Exhibit A, that you state is the same class or kind of boot, as those considered in the Customs rulings. Your client’s boot is an over the ankle hiker style shoe with an outer sole of rubber or plastic and an upper of textile material. The collar and eyelet stays are composed of leather. The textile material is backed by rubber or plastics material.

The two rulings at issue were both issued to Bright Star Footwear, Inc. (Bright Star). The first Customs ruling issued to Bright Star was New York Ruling Letter (NY) F83128, dated February 29, 2000. The boot considered, style R2206, was described as follows:

You have submitted a sample which you identify as sample no. R2206. The item is a hiker style shoe with an outer sole of rubber or plastics and an upper of textile material and leather. The shoe covers the ankle. The upper is composed of a textile material vamp with side and back portions of leather. The rear of the upper has a textile material overlay with four D-rings used for lacing purposes. This textile overlay is considered accessory or reinforcement for tariff purposes as it contributes no structural support to the leather shoe. A visual examination of the upper indicates that leather is the constituent material having the greatest external surface area.

Customs classified the boot, sizes up to and including U.S. men’s size 8, in subheading 6403.91.90, HTSUSA, which provides 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.” The general column one rate of duty is 10 percent ad valorem. For sizes larger than U.S. men’s size 8, Customs classified the boot in subheading 6403.91.60, HTSUSA, which provides 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.” The general column one rate of duty is 8.5 percent ad valorem.

The second ruling issued to Bright Star was NY H87756, dated March 13, 2002. The boot, style CWY-1707-XC “Gobbler,” was described as follows:

. . .

The item is a hiker style shoe with an outer sole of rubber or plastics and an upper of textile material and leather. The shoe covers the ankle.

You state that you have previously obtained a ruling for this style under sample no. R2206 (ruling NY F83128) but have changed the outsole design and would appreciate a new ruling. Unlike the shoe that was previously submitted, style R2206, this shoe has a predominantly textile upper. The textile material at the rear of the shoe is not an overlay atop a leather upper, but rather sits atop a pieced-in material that is not visible on the surface of the shoe. You have identified this underlying material as leather, however, it is a far inferior grade than the leather visible elsewhere on the shoe’s surface.

The boot was classified in subheading 6404.19.90, HTSUSA, which provides 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: Other: Valued over $12/pair.” The general column one rate of duty is 9 percent ad valorem. You have submitted a sample of a boot, labeled Exhibit C, identified as “Gobbler,” style number 4684675, which you claim is the same style boot as the one considered in NY H87756. This boot is labeled as being “waterproof.”

You have also submitted three samples of boots, labeled as Exhibits B1, B2, and B3, that you claim are being improperly classified by the importer as having uppers with an external surface area of leather. An examination of these boots reveals that the external surface area of the upper is composed predominantly of textile material, although there are some leather overlays. The textile material is backed with what appears to be composition leather. The composition leather is completely covered by the textile material and is not visible.

ISSUE:

When is a material which comprises part of a shoe’s upper, included in the external surface area of the upper (ESAU) determination.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

Chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. Note 4(a) to Chapter 64, HTSUSA, 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. Furthermore, General EN (D) to Chapter 64 states, in pertinent part:

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.

In HQ 084013, dated March 26, 1990, Customs stated that: “It is Customs position that the term ‘accessories and reinforcements,’ although not fully defined, includes any additional material added to an otherwise completed upper material.” Customs proceeded to consider a “plastic outside counter around the back of the heel” as part of the upper. Customs reasoned that:

Even though the outside counter functions primarily as an auxiliary stiffener, when removed it exposes a cardboard counter (impregnated with plastic) which lies on top of the non-woven fabric lining layer. The lining layer, if left, would not form a plausible upper for the footwear in question.

In HQ 953556, dated April 9, 1993, Customs reiterated this position and further stated that:
the term "accessories or reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper as long as the underlying material is a plausible upper material, if not the best material.

(Emphasis added.) See also, HQ 956952, dated October 3, 1994; and HQ 956398, dated November 15, 1994. Accordingly, when determining whether an overlay material that is added to an otherwise complete upper is accessory or reinforcement, it must be determined whether the underlying material is “plausible upper material.”

Once it is determined that an underlying material is plausible upper material, the material will only be included in the ESAU calculation -- thereby rendering the overlay material as accessories or reinforcements – if it is visible on the surface. In HQ 084013, supra, Customs stated that:
a piece of material which does not constitute a visible part of the external surface of the upper of the finished shoe should not be considered part of the external surface area of the upper.

This position was further clarified in HQ 088348, dated February 26, 1991, wherein Customs stated:

It appears to us that the standard is clear. In a shoe which has an upper comprised of several layers of material, the top layer will be considered the external surface of the upper when that layer covers the whole surface of the upper.

Customs proceeded in that case, to include in the ESAU determination, a textile base material that was partially visible. See also, HQ 087430, dated October 22, 1990 (“a material in a shoe upper which is completely covered by other material should usually not be considered in external surface area measurements, and that the other material should be considered to be the material of the external surface.”).

Pursuant to Note 4(a) to Chapter 64, HTSUSA, the material of the upper is the material having the greatest external surface area, not taking into account accessories or reinforcements. When calculating the ESAU, the materials of the upper must be categorized as upper material, or as accessories or reinforcements. Materials that are “plausible upper materials” and that are a visible part of the external surface area of the upper are upper materials to be included in the ESAU determination. Materials that are overlays or are otherwise attached to a substantially complete upper will be considered accessories or reinforcements and excluded from the ESAU determination.

Your client’s boot, Exhibit A, is composed with an upper that is entirely textile, with leather eyelet stays. Eyelet stays are accessories and reinforcements, and are excluded. Because the textile material is the constituent which constitutes the entire external surface area, any underlying material, no part of which is visible, is not considered in the ESAU determination.

In NY F83128, the upper of the boot at issue, style R2206, is composed of a textile material vamp with side and back portions of leather. The leather, which is mostly covered by textile material, is considered to be the constituent material having the greatest external surface area. This is because the leather material is both plausible upper material and is, in part, visible on the surface. If the textile material were removed, the underlying leather would, in part, comprise a substantially complete upper. The textile material covering the leather is therefore considered accessory or reinforcement and is excluded in the determination of the ESAU.

The boot considered in NY H87756, claimed to be identical to your Exhibit C, has an upper composed of textile material and two different grades of leather. The textile material comprises most of the external surface area of the upper. At the rear of the boot, the textile material is backed by split leather. The split leather backing is of low quality and is not plausible upper material. Moreover, the split leather is completely covered by the textile material. The split leather is neither plausible nor visible. Accordingly, the textile material, and not the split leather backing, is included in the determination of the ESAU. The textile material also covers higher grade leather that is both plausible upper material and is partially visible. Accordingly, the portion of the textile material that covers this leather upper material is considered an accessory or reinforcement. Most of the ESAU is composed of the textile material, most of which does not lie atop the plausible leather upper material. Accordingly, the upper is considered to be textile.

The three samples of boots, labeled Exhibits B1, B2, and B3, have uppers composed of textile material covering composition leather. There are some leather overlays that are clearly accessories and reinforcements and thus are disregarded. Composition leather is not considered plausible upper material, and thus it is not considered in the ESAU determination. Moreover, the composition leather is not visible. Accordingly, the constituent material of the upper having the greatest external surface area of these boots is the textile material.

Lastly, you argue that in NY H87756, the “Gobbler,” claimed to be identical to your Exhibit C, was improperly classified because it was not classified as protective footwear, which it should have been if it were waterproof. The submitted boot, Exhibit C, is labeled as being waterproof. If it is waterproof as advertised, then the boot would offer protection against water, and should be classified as protective footwear in subheading 6404.19.20, HTSUSA. However, there is no evidence that the actual boot classified in NY H87756, was in fact waterproof. Customs does not know whether this is because the waterproof labeling was intentionally left off of the boot, or if it is because the boot was modified to be waterproof after the classification ruling was obtained. Regardless, based on the sample submitted, Customs ruling in NY H87756 was correct and there is no basis to modify or clarify that Customs ruling.

HOLDING:

The boot, style R2206, in sizes up to and including U.S. men’s size 8, is classified in subheading 6403.91.90, HTSUSA, which provides 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.” The general column one rate of duty is 10 percent ad valorem. For sizes larger than U.S. men’s size 8, the boot is classified in subheading 6403.91.60, HTSUSA, which provides 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.” The general column one rate of duty is 8.5 percent ad valorem.

The boot, style no. 4684675, identified as “Gobbler,” is classified in subheading 6404.19.90, HTSUSA, which provides 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: Other: Valued over $12/pair.” The general column one rate of duty is 9 percent ad valorem.

Pursuant to section 175.11, et seq., Customs Regulations (19 CFR 175.11), you may, in accordance with section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516), file a petition contesting Customs classification of the subject merchandise.

Sincerely,

Myles B. Harmon, Acting Director

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