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HQ 957816




July 14, 1995

CLA-2 R:C:M 957816 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

District Director of Customs
300 South Ferry St
Terminal Island, CA 90731

RE: Protest 2704-95-100726; Footwear, ESAU, Cuffed boot; HRL's 088730, 088956, 088403, 088353

Dear District Director:

This is in response to Protest 2704-95-100726 concerning your action in classifying and assessing duty on a woman's boot with plastic uppers. A sample produced in China was submitted for examination.

FACTS:

The sample, identified as style P17520, is a women's mid- calf boot with a rubber/plastic sole and upper. It has an acrylic fleece lining and features "Thermolite" insulation.

The entry covering this footwear was liquidated on December 2, 1994, under subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, 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. The protest against this liquidation was timely filed on February 28, 1995.

Protestant maintains that footwear represented by the sample is properly classifiable under subheading 6402.91.40, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter is rubber or plastics.

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:
6402.91 Covering the ankle:
6402.91.40 Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) 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 . . .

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 . . . . .

If the boot is not cuffable, the external surface area of the upper (ESAU) would be over 90% rubber plastics which mandates its classification under subheading 6402.91.40, HTSUS. If the boot is cuffable, it would not have an ESAU of over 90% rubber/plastics which mandates classification under subheading 6402.91.50, HTSUS.

The protestant asserts that HRL 088956 dated May 20, 1991, holding that a similar boot was not designed to be cuffed controls the classification of the instant boot. Protestant claims that the boot which was the subject of that ruling, like the boot in issue, did not have a different liner at the top of the shaft; the lining material was the same throughout; the cuff did not lie perfectly flat, and there were wings when it was folded down; and it did not have snaps that would enable a cuff to be permanent and lie flat. Consequently, like the boot in the ruling, the instant boot is not designed to be cuffed. See HRL 088403 dated March 22, 1991, which held that a women's calf-high snow boot having a set of snap closures was designed to be cuffed.

The protestant then states that the boot is not intended to be cuffed for the following specific reasons:

1. The boot is difficult to cuff due to the inflexible plastic material.

2. The cuff does not lay flat and it appears lumpy and wings are formed.

3. The back piece of the boot does not allow for a cuff that is the same width around the top of the boot. This allows the cuff to shift and would be uncomfortable for the wearer.

4. The lining material of the boot is the same throughout.

5. The boot is advertised in the non-cuffed position.

Examination of the sample reveals that the first reason has no validity because the plastic material is no more inflexible than any other type of cuffable boot material.

The second reason has some validity in that the cuffs do not lay perfectly flat and do form slight wings at the rear. However, in Headquarters Ruling Letter (HRL) 088730 dated July 15, 1991, the appearance of "wings" when cuffing a boot did not indicate that the boot was not cuffable. Specifically, it was observed that:

The 'cuff' lays flat for 80 percent of the circumference of the shaft and has a slight flair at the back. The flair or 'wing' does not significantly detract from the appearance of the boot when the 'cuff' is turned down.

The third reason lacks validity in that the difference of width around the top of the boot, when the cuff is turned down, is negligible and the wearers comfort does not appear to be affected. Further, this lack of uniformity in width does not detract from the appearance of the boot.

The fourth reason is negated in HRL 088730 wherein it is stated that "[t]he presence of a uniform lining . . . would not necessarily indicate a lack of intention to cuff." The lining of the subject boot is sufficiently attractive to be worn in the cuffed position.

The fifth reason lacks validity in that although the boots are advertised in an uncuffed condition, their configuration shows that they were designed to be cuffed. Specifically, the boot has a sewn in textile label which appears sufficiently far enough down inside the boot shaft, to allow the boot to easily be cuffed without the label being visible. The boot has a "V" cut at the top rear boot shaft to facilitate cuffing. See, e.g; HRL 088353 dated March 12, 1991, holding that a ladies' boot with a notch at the back of the upper was designed to be worn cuffed.

It is our opinion that the sample boot is cuffable and the exposed lining material, visible when cuffed, should be included in an ESAU measurement. The boot does not have an upper of which over 90% of the external surface area (including any accessories or reinforcements) is rubber or plastics.

In view of the foregoing, it is our opinion that the subject boot is classifiable under subheading 6402.91.50, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, 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.

HOLDING:

The subject women's boot is dutiable at the rate of 37.5% ad valorem under subheading 6402.91.50, HTSUS.

The protest should be denied. 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 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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