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HQ 088403




March 22, 1991

CLA-2 CO:R:C:M 088403 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

District Director of Customs
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street
Boston, MA 02222-1052

RE: Decision on Application for Further Review of Protest No. 0401-90-000373

Dear Sir:

This protest was filed against your decision in the liquidation of an entry covering a shipment of women's snow boots produced in Taiwan.

FACTS:

The merchandise involved is a women's calf-high snow boot called the "Colorado" which measures approximately 9 inches high with the top of the shaft turned down. This boot has a set of snap closures and a V cut at the top of the shaft. The size and country of origin label is located approximately 3-1/2 inches down from the top of the shaft. A laboratory analysis shows that when the top of the shaft is folded and snapped into place the external surface area of the upper is under 90 percent rubber/plastics.

The entry covering these snow boots was liquidated 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.

Counsel for the protestant maintains that the boots are properly classifiable under subheading 6402.91.40, HTSUSA, as 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 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.

ISSUE:

Does the boot have an upper the external surface area of which is over 90 percent plastics?

LAW AND ANALYSIS:

Counsel for the protestant argues that the portion of the boot's uppermost interior lining when folded down to create a cuff cannot be included as external surface area of the boot's upper. The rationale for this position is said to be found in the case of Inter-Pacific Corp. v. United States, 8 CIT 132 (1984). Specifically, in order to be considered a part of the external surface area of the upper the folding down of the interior lining to create the cuff must be the "permanent" configuration of the upper. In this case the boot may be worn either cuffed or not cuffed. Thus, counsel claims that the configuration of the boot in its cuffed condition is not "permanent" and the folded down portion of the interior lining cannot be included as part of the external surface area of the upper.

Counsel for the protestant sets forth the following reasons why the boots are not designed to be worn in a cuffed position:

1. A design feature consisting of a strap on the back seam of the boot would be partially obscured by folding.

2. The lining material is the same throughout the entire length of the interior of the shaft.

3. The boot's uppers do not lie flat when folded down.

4. The top of the shaft is "bifurcated" or slitted which enables the wearer to more easily insert the legs of jeans into the boot, and which also causes the rolled over shaft to have a "butterfly" appearance which contradicts the notion that the boot's top is intended to be folded down.

5. The boots do not possess fold lines which would provide their wearer with any indication of where the boots should be folded over.

6. The interior fleece-type material exhibits no special characteristics which would suggest to the wearer that the boots should be worn with the top portion folded over.

It is our observation that the presence of the snap closures at the top of the shaft is conclusive evidence that the boots were designed to be worn cuffed. Further, we submit that the configuration of the boots in their cuffed condition can be considered "permanent" noting that when worn with the shaft turned up the metal snap closures are visible rendering the boots much less "stylish" and possibly unattractive.

The remaining reasons cited by counsel for the protestant as to why the boots are not designed to be worn in a cuffed position are not persuasive. For example, the design feature in the form of a strap in the upper portion of the outer shaft, which is said to make the boots stylish, is partially obscured when they are cuffed. An examination of the sample reveals that the strap is not obscured at all when the boots are worn cuffed.

It is contended on behalf of the protestant that the boot's uppers do not lie flat when folded down. It is our observation that the uppers do lie flat especially since they are held in place by snap closures.

The absence of fold lines to show where the shafts are to be folded over is not a relevant factor here because the snap closures dictate the posture of that portion of the shaft which is folded down.

With respect to the fleece lining material, it is our opinion that it is in fact very attractive and would be the type of material used in cuffed boots as is the case here.

HOLDING:

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

The protest should be denied. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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