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
Active· CBP ruling HQ 954782· Issued 1993-11-23
Ruling text
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.
-2-
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.
-3-
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.
-4-
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.
-5-
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.
-6-
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
Source: rulings.cbp.gov — ruling 954782, retrieved 2026-10-12T05:28:14Z, republished verbatim. This digest is informational; only CBP issues binding rulings.