CLA-2 R:C:M 957552 DFC
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