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HQ 957552




April 7, 1995

CLA-2 R:C:M 957552 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.60

District Director of Customs
110 South 4th Street
Room 154
Minneapolis MM 55401

RE: Protest 3501-94-100307; Footwear; Uppers, external surface area

Dear District Director:

This is in response to Protest 3501-94-100307 concerning your action in classifying and assessing duty on certain "duck" boots produced in China. A sample was submitted for examination.

FACTS:

The sample, identified as style 9400 or 9450, is a man's lace-up, over-the-ankle winter boot with a molded rubber bottom and a leather and rubber upper.

Customs Laboratory Report 3-94-20729-001 dated June 2, 1994, states that the boot has an upper the external surface area (ESAU) of which is 48% leather and 52% rubber/plastics excluding accessories and reinforcements (A/R). Based on this laboratory report the entry was liquidated on May 13, 1994, under subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), which provides for protective footwear with duty at the rate of 37.5% ad valorem. The protest was timely filed on August 2, 1994.

Counsel for protestant maintains that the boots are properly classifiable under subheading 6403.91.60, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, covering the ankle, other, for men, youths and boys. The applicable rate of duty for this provision is 8.5% ad valorem.

ISSUE:

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

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 are 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 with outer soles of leather: 6403.51 Covering the ankle:

Other:
6403.51.60 For men, youths and boys . . .

Footwear is provided for in Chapter 64, HTSUS. Note 3 to Chapter 64, HTSUS, provides as follows:

3. For the purposes of this chapter the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials.

Note 4(a) to chapter 64, HTSUS, provides, 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 such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments[.]

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). General EN (D) to chapter 64, HTSUS, at page 875, 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.

Counsel for the protestant states that the entire upper is made from one piece of leather making the ESAU over 51% of leather (exclusive of reinforcements, accessories, ornamentation etc. . .) which in itself constitutes satisfaction of the predominant upper material criteria. Further, Customs ESAU measurement is flawed because the 1/2" leather piece around the eyelets has not been included in calculating the ESAU.

In discussing what material was counted as upper and what as A/R with personnel from our Customs Chicago laboratory, it was ascertained that a portion of the leather material of the upper which contains the eyelets was considered A/R and not counted in the initial ESAU measurement.

It is our opinion that the leather material containing the eyelets is part of the upper and should be considered ESAU rather than an A/R for the following reasons:

1. it is not a separate piece of material sewn onto the upper, but a continuation of the single piece of leather which forms the top of the upper;

2. it is not an A/R because the underlying material which appears to be some type of foam is not a plausible upper material; and

3. it covers a portion of the tongue but not another portion of the upper.

A remeasurement of the boot upper by Customs Chicago laboratory, which included the leather material containing the eyelets, reveals an ESAU of 55% leather and 45% rubber/plastics.

HOLDING:

Leather is the constituent material which comprises the greatest external surface area of the boot's upper.

The "duck" boots are classifiable as claimed under subheading 6403.91.60, HTSUS.

The protest should be granted. 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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