CLA-2 CO:R:C:M 088511 NLP

Mr. Stephen S. Spraitzar
Law Offices of George R. Tuttle, P.C
3 Embarcadero Center, Suite 1160
San Francisco, CA 94111

RE: Hiking Boots; constituent material of the upper; external surface area of upper; Explanatory Note D to Chapter 64; Legal Note 4(a) to Chapter 64; subheading 6403.91.60; accessories and reinforcements; HRL 083727; HRL 087430; HRL 081305

Dear Mr. Spraitzar:

This is in response to your letters dated January 2, 1991, November 19, 1991, and March 3, 1992, on behalf of Hi-Tec Sports, U.S.A., Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of hiking boots. A sample was submitted for our examination.

FACTS:

The merchandise at issue is the "Rainier" style men's hiking boots that will be manufactured in Korea and/or the People's Republic of China. The hiking boot's upper is made of leather and 1000 denier nylon. The upper has a rubber toe bumper, a suede leather toe-over patch, a suede heel counter, a plastic heel stabilizer, a padded tongue, and a leather covered lace closure with five eyelets and two plastic hooks on each side. In addition, the upper consists of a heavily padded suede over the ankle collar. A leather configuration on each side of the upper depicts the Hi-Tec logo. The hiking boot has a cemented EVA wedge mid-sole and a high carbon lug outsole. A steel shank has been inserted into the sole of the boot.

You claim that the leather constitutes the constituent material having the greatest external surface of the upper. Accordingly, the hiking boot is classified in subheading 6403.91.60, HTSUS, 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.

ISSUE:

What is the constituent material of the uppers of the hiking boots and under what subheading are they classified.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI'S). GRI 1 provides that classification shall be determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

You maintain that the external surface area of the uppers of the hiking boots is leather and therefore, the hiking boots are classified in subheading 6403.91.60, HTSUS. You assert that the leather portions of the upper are not accessories and reinforcements because the leather is essential for making an upper that is suitable for the backpacking terrain. Since the nylon fabric, which is visible on some parts of the upper, would not be durable enough to withstand the ruggedness of the backpack terrain it cannot be considered the upper material of the boot. Moreover, the leather portion of the upper is more than an "accessory" or "reinforcement" because the leather portion is not similar to any of the exemplars in Legal Note 4(a) to Chapter 64, HTSUS. Specifically, items such as ankle patches, edging, buckles or tabs are attached to the upper and are not integral parts of the uppers, as opposed to the leather component of the footwear which is an integral part of the upper.

Furthermore, you claim that to be considered an upper, a material must be attached to the sole unit and if it is not attached to the sole unit then it is an accessory to that part of the upper which is permanently attached to the sole unit. For example, in the subject hiking boots, from the seam, the leather material extends down and is lasted to the midsole and upper via the board cement last method. Therefore, the leather material is permanently attached to the sole by gluing. The nylon material also extends down and is tucked under the insole and is pinched against the leather. However, the nylon material is not permanently attached to the insole by cementing, tacking, stapling, etc. You contend that this construction is not designed to reinforce the construction of the boot and the nylon serves no structural purpose. Thus, this construction supports the position that the leather is the constituent material of the upper.

Additionally, you cite that Headquarters Ruling Letter (HRL) 083727 dated February 12, 1990, supports your position that the upper of the "Rainier" is leather. This ruling dealt with the issue of whether, if an outer layer of material completely covers

and hides another surface, should the outer layer be considered a part of the external surface of the upper, or should the hidden material be considered to be part of the external surface area of the upper. HRL 083727 stated that a piece of material which does not constitute a visible part of the external surface of the upper of the finished shoe at any point should not be considered to be part of the external surface of the upper. It is your claim that a consumer, when viewing the hiking boot, is going to view it as being made primarily of leather because most of the nylon is hidden. Thus, the hidden portion of the nylon should not be considered to be part of the external surface area of the upper.

In HRL 087430 dated October 22, 1990, Customs took the position that a layer which comprises all of the external surface of the upper is in fact the external surface of the upper even if there is a plausible upper material underneath. 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. However, in the instant case, the textile base is not covered in full by the leather material and is a visible component of the surface area of the hiking boots. Therefore, based on the above standard, the leather is not considered the upper material of the hiking boots.

The issue to be decided is what is the external surface area of the uppers of the hiking boots. Legal Note 4 (a) to Chapter 64, HTSUS, provides the following:

(a) 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.

It is our position that the term "accessories and reinforcements," although not fully defined, includes any additional material added to an otherwise completed upper material. For example, leather or vinyl are plausible upper materials, however, foam/tricot is normally a lining material and is not a plausible upper material. Thus, the next issue to determine is what constitutes the upper material of the subject hiking boots.

In determining whether the nylon is upper material in the subject hiking boots, the fact that it is not cemented to the insole is taken into consideration. However, it does not negate that the nylon is an upper material. First, the HTSUS does not require that the upper be cemented or attached permanently to

the insole of the footwear. Second, this material is a plausible upper material. Third, a substantial portion of it is exposed on the finished boot. Fourth, while the textile material is not cemented to the insole, it does come under the insole. Therefore, if the leather is pulled away from the textile material, the textile does not just hang loose; it must be pulled away by hand for it to hang loose. Thus, if the leather was pulled away, the textile material would still cover the top and sides of the foot.

After examining the boot, it is clear that certain parts of the upper are excluded as accessories or reinforcements. The excluded parts of the upper are:

1. The separate stitched on textile tongue and shoelaces, pursuant to HRL 081305, dated March 10, 1988.

2. The rubber toe bumper because it is merely for reinforcement.

3. The "U" shaped leather piece which goes around the eyelets and is attached at both eyelet stays. This piece only serves as an anchor for the eyelets and its removal exposes additional area of the textile. Eyelet stays are specifically cited as an exemplar of an accessory or reinforcement in Note 4(a) to Chapter 64, HTSUS.

4. The leather configuration on each side of the boot that somewhat resembles an arrow. These are ornamental in nature.

Though the other leather pieces are cemented on, we do not interpret "external surface are of the upper" to depend on what pieces are cemented to the insole. The other leather pieces are also sewn onto a plausible textile upper material. It is our position that the leather pieces are reinforcements on an otherwise plausible textile upper material. Therefore, after removing all the accessories and reinforcements, the constituent material of the upper is the textile and the hiking boot is classified in subheading 6404.19.15, HTSUS.

HOLDING:

The "Rainier" hiking boot is classifiable in subheading 6404.19.15, HTSUS, 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, 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 rate of duty is 10.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division