CLA-2 CO:R:C:M 950680 DFC

Mr. Don H. Choi
Vice President
Top Line Manufacturing Co.
Passaic Industrial Center
Building 1F, 90 Dayton Avenue
Passaic, NJ 07055

RE: Boots, Hiking; Footwear, protective; T.D. 92-32

Dear Mr. Choi:

In your three letters dated October 7, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain hiking boots produced in China or Korea. Samples were submitted for examination.

FACTS:

The sample boots have "camouflaged," cordura nylon uppers with large amounts of leather overlays, heavy studded hiking soles, large rubber toe bumpers, and EVA midsoles and wedges. These boots will be worn primarily by hunters and hikers and also by rural dwellers as general outdoor or bad weather footwear.

Item no. WP-540 has an eight inch high, heavy (1000 denier) fabric upper with very extensive grain leather overlays and a removable liner of neoprene rubber sandwiched between two layers of nylon fabric. There is a label on the outside of the tongue with the legend "Waterproof" and "Thinsulate-Thermal Insulation," appearing thereon. The liner is held to the inside of the upper by velcro-like fasteners.

Item no. 540 is the same as item WP-540 except that its upper is seven inches high, not eight; has a "cambrelle lining," not a removable liner; and is labelled "Thinsulate-Thermal Insulation," not "waterproof."

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The "Thinsulate" insulation is relatively thin, but it is sufficiently thick to make the boot considerably warmer in very cold weather than an uninsulated boot.

Both item nos. WP-540 and 540 have thin plastic coatings on their grain leather overlays.

Item no. C-57 has a four inch high, medium weight (420 denier) fabric upper. The lining is a brushed fabric and there is a very thin layer of foam plastic about 1/32 inch thick, when lightly compressed, between the upper and its lining. This is about the minimum necessary for the upper to retain its shape. Because it is lighter and, we assume, cheaper, we believe that, of the three hiking boots, it will be the one most often used simply as everyday casual footwear.

ISSUE:

1. Are the external surface areas of the plastic coated leather overlays which constitute over 50% of the external surface areas on the uppers of items WP-540 and 540 considered to be leather for tariff purposes and thus described in subheading 6404.19.15, HTSUS?

2. Are these boots considered "protective" footwear for tariff purposes and thus described in subheading 6404.19.20, HTSUS? Assuming the plastic coated leather is considered to be leather and if they are "protective" should the boots be classified in subheading 6404.19.15, HTSUS, or subheading 6404.19.20, HTSUS?

LAW AND ANALYSIS:

ISSUE NO. 1

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.

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Initially, in deciding the classification of footwear, a determination must be made as to the constituent material of the upper. Legal note (LN) 4(a) to Chapter 64, HTSUS, provides guidance in making this determination. It reads as follows:

4. Subject to note 3 to this chapter:

(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, buckles, tabs, eyelet stays or similar attachments.

When the uppers consist of two or more materials the Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS are instructive. The EN's 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 [pp.874-875] which is relevant here reads in part as follows:

For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. . . . If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area. . . ."

The term "accessories and 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, even if not the best material. We note that the nylon textile which is clearly a plausible upper material predominates in external surface area of the upper when the plastic coated leather "accessories" or reinforcements" are removed in accord with LN 4(a) to Chapter 64, supra. Consequently, the footwear is described within heading 6404, HTSUS.

Based on visual examination, we have concluded that the plastic coated leather overlays occupy over 50 percent of the external surface areas of the uppers of items WP-450 and 540. We must now determine whether the overlays are leather or plastic.

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Inasmuch as the plastic coated leather overlays on the uppers of items WP-540 and 540 are composed of different materials, GRI 3(b) is applicable. It reads as follows:

Mixtures, composite goods consisting of different materials or made up of different components, . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Clearly, the plastic covered leather overlays are composite goods and will be classifiable as if they consist of the component which gives them their essential character.

It is our observation that the essential character of the plastic coated leather overlays is derived from their leather components. The leather constitutes the bulk of the overlays which add considerable strength to the upper while the plastic covering or coating merely enhances the leather's durability and water resistant qualities. In addition, the leather is more valuable than the plastic coating.

ISSUE NO. 2

The specific issue here is whether the hiking boots 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.

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.

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GRI 6, HTSUS, reads as follows:

6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

By virtue of GRI 6, HTSUS, GRI 3(a), HTSUS, is relevant to the classification of the hiking boots involved. 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 . . .

Based on our previous discussion, it is clear that items nos. WP-540 and 540 are prima facie classifiable under subheading 6404.19.15, HTSUS. Both items WP-540 and 540 also are prima facie classifiable under subheading 6404.19.20, HTSUS, because of the presence of thermal insulation in both models and the presence of a waterproof liner in item WP-540.

In Headquarters Ruling Letter 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.

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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 agree with this suggestion and would now 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."

Item no. C-57 is not considered protective footwear for tariff purposes since it is basically casual footwear and does not provide any added degree of protection for the foot against water or cold weather. Consequently, it is classifiable under subheading 6404.19.15, HTSUS, as 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 LN 4(a) to this chapter) is leather. See T.D. 92-32, copy enclosed, for a more detailed explanation of our position regarding protective footwear.

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HOLDING:

The plastic coated overlays on the uppers of items WP-540 and 540 are considered leather for tariff purposes. These styles are considered to be protective footwear. The provision for protective footwear in subheading 6404.19.20, HTSUS, is more specific than the provision for footwear with textile uppers having an external surface area over 50% of leather in subheading 6404.19.15, HTSUS.

Item nos. WP-540 and 540 are dutiable at the rate of 37.5% ad valorem under subheading 6404.19.20, HTSUS.

Item no. C-57 is dutiable at the rate of 10.5% ad valorem under item 6404.19.15, HTSUS.

Sincerely,


John Durant, Director
Commercial Rulings Division


Enclosure


6cc AD NY seaport
1cc J. Sheridan NY seaport
1cc John Durant
1cc Legal Reference