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HQ 089820

September 17, 1991

CLA-2 CO:R:C:M 089820 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50; 6403.91.90

District Director of Customs
U.S. Customs Service
111 West Huron St.
Buffalo, NY 14202

RE: Duck Boots; Footwear Uppers; External Surface Calculation; Leather Tongue

Dear Sir:

This is our decision on Application for Further Review of Protest No. 0901-1-850014, dated February 19, 1991, concerning your action in classifying and assessing duty on duck boots imported from Canada under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise was entered under subheading 6403.91.90, HTSUSA, which provides for: "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [c]overing the ankle: [o]ther: [f]or other persons." However, the merchandise was liquidated under subheading 6402.91.50, HTSUSA, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [o]ther: [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."

The subject merchandise is a duck boot, worn for the protection of the foot. The outer sole of the boot is made of rubber or plastics. The external surface of the upper is composed of rubber or plastics (49.5 percent), leather (37.5 percent), and textile materials (13 percent). When the external surface of the upper was calculated, the boot's leather tongue was not considered. It is the importer's position that the tongue should be considered in the calculation of the upper.

ISSUE:

Whether the tongue of the subject duck boot should be considered in the calculation of the boot's upper for classification purposes under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

For various reasons, the importer claims that the tongue should be considered in the calculation of the external surface of the boot's upper. First, it is argued that the tongue must be included in the calculation, because without the tongue the protective footwear ceases to be protective. This is not a valid argument for the inclusion of the tongue in the calculation of the upper. Even though the tongue is important as a part of protective footwear, it is also very important as a part of the shoe in many styles that are not considered protective footwear. Therefore, the tongue, as a protective device, cannot be said to be important just for protective footwear.

The importer also cites T.D. 84-59, to prove the inclusion of the tongue in the calculation of the upper. However, in that decision, it was stated that "Customs proposed to change this practice, and find that the tongue or flap of the subject footwear should be included in the computation of the exterior surface of the upper, because the leather tongue or flap is not covered by any portion of the upper when the shoe is tied, and because the entire surface of the tongue or flap is visible and tactile." The subject duck boot is quite distinguishable from the description just provided. In the present case, the tongue is covered by the upper when the shoe is tied and it is not part of the visible or tactile surface of the boot when worn.

To show that the industry considers the tongue to be a part of the upper, the importer submitted a copy of a CSA Information Bulletin. In part, the bulletin states that "[p]rotective footwear with protective soles are required to bear a green, yellow or red equilateral triangle indicating the type of protection provided . . . Clauses 6.2, 6.3 and 6.4 of CSA Standard 7.195-1984 specify that the placement of the applicable triangle must be on the shoe's 'upper'. The interpretation of this requirement . . . is that the tongue is considered to be the part of the shoe's 'upper'. Therefore, the triangle can be placed on the shoe's tongue, provided the mark is visible when the shoe laces are tied." It is not our position that, for the purposes of marking footwear with protection labels, the tongue cannot be considered a part of the upper. It is our position that, for purposes of determining the material of the upper, the tongue is not to be included in the calculation of the upper's external surface area. The provided CSA Information Bulletin does not question that determination. Its only purpose is to determine the application of the upper for protection labeling purposes.

In Headquarters Ruling Letter (HRL) 084574, dated November 30, 1989, Customs ruled that a bellows-type tongue was not considered to be part of the external surface of the upper. The rationale for that position was that the plane curve of the tongue was on a lower plane than the outer plane curve made up of the shaft, the eyelet stays, and the laces that connect the eyelet stays. It is our view that the tongue of the subject duck boot is essentially the same as the bellows-type tongue ruled on in HRL 084574 because the tongue is on "a plane lower than a portion of the upper and is partially or wholly covered by laces and eyelet facings or stays." Consequently, it is our position that the subject tongue is not to be included in the calculation of the external surface of the upper.

HOLDING:

The subject duck boot is classifiable under subheading 6402.91.50, HTSUSA, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [o]ther: [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." The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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