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HQ 956819




November 15, 1994

CLA-2 CO:R:C:M 956818 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.90

District Director of Customs
U.S. Customs Service
2nd & Chestnut Street
Room 102
Philadelphia, PA 19106-2999

RE: Protest 1101-94-100420; Footwear; Upper, external surface area

Dear District Director:

This is in response to Protest 1101-94-100420 covering a shipment of ladies footwear produced in Korea.

FACTS:

The footwear involved, described as "Bean Boots" styles "O- Alphabet" and "O-Apprentice," were both entered under subheading 6403.91.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, for other persons.

The entry covering these boots was liquidated on May 6, 1994, under subheading 6402.91.50, HTSUS, which provides for protective footwear with outer soles and uppers of rubber or plastics. The protest was timely filed on July 19, 1994.

Protestant agrees that the "Bean Boot" described as style "O-Apprentice" was properly liquidated by Customs under subheading 6402.91.50, HTSUS. Consequently, the protest is withdrawn as it relates to the "O-Apprentice." However, protestant claims that style "O-Alphabet" is correctly classified as entered.

ISSUE:

What is the constituent material which comprises the greatest external surface area of the boot's upper (ESAU)?

LAW AND ANALYSIS:

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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions read, as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.91 Covering the ankle:

Other:
6402.91.50 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. . . . . .

6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear:
6403.91 Covering the ankle:

Other:

6403.91.90 For other persons. . . . . .

Counsel for the protestant claims that style "O-Alphabet" is correctly classified as originally entered and that the rate advance was based on the physical examination of only one of the items on the entry, viz., style "O-Apprentice." Further, counsel has provided a sample of style "O-Alphabet" along with an independent laboratory measurement of the external surface area of the upper to substantiate the claim for classification as leather footwear.

The decision by Customs to rate advance this merchandise was based on classification information provided by a Customs Form (CF) 6431. The reply on the CF 6431 involved one item ["O- Apprentice"] which had an upper that by visual examination was predominately rubber/plastic. We believe that the classification information provided on the CF 6431 applies only to one style since there is no reference to a second style ["O-Alphabet"] in either the sender's remarks or in the reply by the NIS.

The laboratory report dated August 11, 1994, prepared by Consumer Testing Laboratories, Inc., states that leather occupies 54.5% of the ESAU of style "O-Alphabet." Based on the independent laboratory report and a visual examination of a sample, it is our position that style "O-Alphabet" is properly classified as leather footwear.

HOLDING:

Leather is the constituent material comprising the greatest ESAU of style "O-Alphabet."

Style "O-Alphabet" is dutiable at the rate of 10% ad valorem under subheading 6403.91.90, HTSUS.

The protest should be allowed. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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