HQ 084574: Protective boots made in Korea

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 084574

                                  November 30, 1989


          CLA-2 CO:R:C:G  084574 DFC

          CATEGORY: Classification

          TARIFF NO.: 6402.91.50

          John Pelligrini, Esq.
          Ross & Hardies
          529 Fifth Avenue
          New York, New York 10007-4608

          RE: Protective boots made in Korea

          Dear Mr. Pellegrini:

               In a letter dated May 10, 1989, you asked that this office
          reconsider the result reached in New York Ruling Letter (NRYL)
          838390 dated April 13, 1989, concerning the tariff classification
          of the subject footwear.  Specifically, Style Nos. 21067, 21377
          and 21097 were held to be classifiable 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.

          FACTS:

               Each of the three styles has a rubber/plastic bottom which
          rises about 2 inches above the insole line and a shaft which has
          components of textile and uncoated leather.  All styles cover the
          ankle.

               Style No. 21067 is a man's size 9 river boot with a five
          eyelet lace closure.  The leather/textile shaft is four and one-
          half inches in height.  You state that the rubber and plastic
          portion of the upper encompasses an area of 50.35 square inches
          and represents 39.7 percent of the external surface area of the




















                                         -2-


          upper. The textile portion is said to encompass an area of 21.8
          square inches and represents approximately 17.2 percent of the
          external surface area of the upper.  The leather portion is said
          to cover an area of 54.8 square inches and represents
          approximately 43.2 percent of the external surface area of the
          upper.

               Style No. 21097 is a similar man's river boot but with a
          seven inch shaft and an eight eyelet lace closure.  You state
          that rubber and plastic cover an area of 52.6 square inches and
          represents approximately 28.7 percent of the external surface
          area of the upper.  The textile portion is said to cover an area
          of 38.1 square inches and represents 20.8 percent of the external
          surface area of the upper.  The leather portion is said to cover
          an area of 92.8 square inches and represents 50.6 percent of the
          external surface area of the upper.

               Style No. 21377 is a women's river boot with a seven eyelet
          lace closure.  The shaft is five and one-half inches in height.
          The rubber and plastics portion of the upper is said to cover an
          area of 46.9 square inches and represents approximately 34.8
          percent of the external surface area of the upper.  The textile
          portion is said to cover an area of 25.2 square inches and
          represents approximately 18.7 percent of the external surface
          area of the upper.  The leather portion is said to cover an area
          of 62.8 square inches and represents approximately 46.5 percent
          of the external surface area of the upper.

               You maintain that the samples are classifiable as footwear
          with outer soles of rubber, plastics, leather or composition
          leather and uppers of leather, covering the ankle, in subheading
          6403.91.60 or 6403.91.90, HTSUSA, depending on gender.

          ISSUE:

               Whether the tongues, eyelet facings, and the horizontal
          strips should be considered as external surface area of the
          upper.























                                         -3-


          LAW AND ANALYSIS:

               Legal Note 4(a) to Chapter 64, HTSUSA, provides that "[t]he
          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."

               With respect to your claim that the tongues of the sample
          boots should be included as external surface area of their
          uppers, we invite your attention to T.D. 84-59, 18 Cust. Bull.
          166 (1984), which reads in pertinent part as follows:

               It has consistently been Customs position that the exterior
               surface area of the upper is whatever is visible and tactile
               on the surface excepting such things as buttons, strips and
               other loosely attached appurtenances.  In those cases where
               the tongue was held not be part of the exterior surface area
               of the upper, it was on a plane lower than a portion of the
               upper and was partially or wholly covered by laces and
               eyelet facings or stays.

               The term "plane" is used to describe, in the case of
          footwear, that which would be more accurately called a "plane
          curve."  An example of a plane curve lower than another plane
          curve would be one hollow cylinder placed inside of a second,
          larger hollow cylinder.  Another example is the uppers of the
          boots in issue.  The outer plane curve is made of the shaft, the
          eyelet stays, and the laces that connect the eyelet stays.
          Directly underneath this plane curve is the plane curve of the
          tongue.  The only place where the tongue in not on a plane curve
          lower than the upper is at its bottom edge where it is attached
          to the topline of the rubber bottom.  Clearly, the tongue is
          attached underneath the eyelet stays, not on top of or in the
          same plane curve as the eyelet stays.  That the space between the
          edges of the two eyelet stays may be two inches or five inches in
          no way changes the fact that the tongue is in a lower plane curve
          than the shaft, eyelet stays, and laces.  Many shoes in which the
          tongues are not considered part of the upper have gaps between
          the eyestays which can be narrow or wide depending on the
          construction of the shoe or the size of the foot it is worn on.



















                                         -4-


               In Headquarters Ruling Letter (HRL) 081646 dated March 27,
          1989, the term "accessories and reinforcements" was further
          defined as "any additional material added to an otherwise
          completed upper as long as the underlying material is a plausible
          upper material, even if not the best material."

               You cite this ruling as authority for your position that the
          eyelet facings and the horizontal strips on the three styles
          constitute part of the external surface area of the uppers.

               Upon reexamination of the samples we conclude that the
          leather eyelet facings and the horizontal strips, with the
          exception of the top strips on style Nos.21067 and 21377, are not
          "accessories or reinforcements" because the underlying material
          consisting of a tricot lining and insulation material is not
          plausible upper material. Accordingly, they should be included as
          part of the external surface area of the uppers.

               It should be noted that the rubber/plastic material
          predominates in external surface area of the uppers of the sample
          footwear even when the leather eyelet facings and horizontal
          strips are included as part of the external surface area.

          HOLDING:

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

                                         Sincerely,




                                         John Durant, Director
                                         Commercial Rulings Division



















          cahill library 084574
          6cc AD NY Seaport
          1cc Eric Francke NY Seaport
          1cc Legal Reference
          DFCahill:peh:9/27/89