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HQ 084574


November 30, 1989

CLA-2 CO:R:C:G 084574 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

John Pelligrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10007-4608

RE: Protective boots made in Korea

Dear Mr. Pellegrini:

In a letter dated May 10, 1989, you asked that this office reconsider the result reached in New York Ruling Letter (NRYL) 838390 dated April 13, 1989, concerning the tariff classification of the subject footwear. Specifically, Style Nos. 21067, 21377 and 21097 were held to be classifiable under subheading 6402.91.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, 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.

FACTS:

Each of the three styles has a rubber/plastic bottom which rises about 2 inches above the insole line and a shaft which has components of textile and uncoated leather. All styles cover the ankle.

Style No. 21067 is a man's size 9 river boot with a five eyelet lace closure. The leather/textile shaft is four and one- half inches in height. You state that the rubber and plastic portion of the upper encompasses an area of 50.35 square inches and represents 39.7 percent of the external surface area of the
upper. The textile portion is said to encompass an area of 21.8 square inches and represents approximately 17.2 percent of the external surface area of the upper. The leather portion is said to cover an area of 54.8 square inches and represents approximately 43.2 percent of the external surface area of the upper.

Style No. 21097 is a similar man's river boot but with a seven inch shaft and an eight eyelet lace closure. You state that rubber and plastic cover an area of 52.6 square inches and represents approximately 28.7 percent of the external surface area of the upper. The textile portion is said to cover an area of 38.1 square inches and represents 20.8 percent of the external surface area of the upper. The leather portion is said to cover an area of 92.8 square inches and represents 50.6 percent of the external surface area of the upper.

Style No. 21377 is a women's river boot with a seven eyelet lace closure. The shaft is five and one-half inches in height. The rubber and plastics portion of the upper is said to cover an area of 46.9 square inches and represents approximately 34.8 percent of the external surface area of the upper. The textile portion is said to cover an area of 25.2 square inches and represents approximately 18.7 percent of the external surface area of the upper. The leather portion is said to cover an area of 62.8 square inches and represents approximately 46.5 percent of the external surface area of the upper.

You maintain that the samples are classifiable as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, covering the ankle, in subheading 6403.91.60 or 6403.91.90, HTSUSA, depending on gender.

ISSUE:

Whether the tongues, eyelet facings, and the horizontal strips should be considered as external surface area of the upper.

LAW AND ANALYSIS:

Legal Note 4(a) to Chapter 64, HTSUSA, provides that "[t]he 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."

With respect to your claim that the tongues of the sample boots should be included as external surface area of their uppers, we invite your attention to T.D. 84-59, 18 Cust. Bull. 166 (1984), which reads in pertinent part as follows:

It has consistently been Customs position that the exterior surface area of the upper is whatever is visible and tactile on the surface excepting such things as buttons, strips and other loosely attached appurtenances. In those cases where the tongue was held not be part of the exterior surface area of the upper, it was on a plane lower than a portion of the upper and was partially or wholly covered by laces and eyelet facings or stays.

The term "plane" is used to describe, in the case of footwear, that which would be more accurately called a "plane curve." An example of a plane curve lower than another plane curve would be one hollow cylinder placed inside of a second, larger hollow cylinder. Another example is the uppers of the boots in issue. The outer plane curve is made of the shaft, the eyelet stays, and the laces that connect the eyelet stays. Directly underneath this plane curve is the plane curve of the tongue. The only place where the tongue in not on a plane curve lower than the upper is at its bottom edge where it is attached to the topline of the rubber bottom. Clearly, the tongue is attached underneath the eyelet stays, not on top of or in the same plane curve as the eyelet stays. That the space between the edges of the two eyelet stays may be two inches or five inches in no way changes the fact that the tongue is in a lower plane curve than the shaft, eyelet stays, and laces. Many shoes in which the tongues are not considered part of the upper have gaps between the eyestays which can be narrow or wide depending on the construction of the shoe or the size of the foot it is worn on.

In Headquarters Ruling Letter (HRL) 081646 dated March 27, 1989, the term "accessories and reinforcements" was further defined as "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."

You cite this ruling as authority for your position that the eyelet facings and the horizontal strips on the three styles constitute part of the external surface area of the uppers.

Upon reexamination of the samples we conclude that the leather eyelet facings and the horizontal strips, with the exception of the top strips on style Nos.21067 and 21377, are not "accessories or reinforcements" because the underlying material consisting of a tricot lining and insulation material is not plausible upper material. Accordingly, they should be included as part of the external surface area of the uppers.

It should be noted that the rubber/plastic material predominates in external surface area of the uppers of the sample footwear even when the leather eyelet facings and horizontal strips are included as part of the external surface area.

HOLDING:

The sample boots are classifiable under subheading 6402.91.50, HTSUSA, and dutiable at the rate of 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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