Protest 2002-93-001906; Footwear, boot, snow; Upper, external surface area; HRL 951444

Active· CBP ruling HQ 955919· Issued 1994-06-06

Ruling
HQ 955919
Issued
Status
Active
Category
Classification
HS prefixes
6402.91
Tariff numbers
6402.91.50

Ruling text

HQ 955919 
 
                           June 6 1994

CLA-2  CO:R:C:M  955919 DFC 

CATEGORY:  Classification 

TARIFF NO.:  6402.91.50

District Director of Customs 
Suite 244 
423 Canal Street 
New Orleans, Louisiana  70130-2341 

RE:  Protest 2002-93-001906;  Footwear, boot, snow;  Upper,
     external surface area; HRL 951444 

Dear District Director: 

     This is in response to Protest 2002-93-001906, covering a
shipment of men's and women's snow boots produced in China.  A
sample was submitted for examination.  Our decision as to the
classification of these snow boots is also applicable to the
identical snowboots which are the subject of protests 2002-93-
001905 and 2002-93-001907, which you forwarded to this office on
February 24, 1994. 

FACTS: 

     The sample, identified in protestant's letter dated May 4,
1994, as Igloo Snow boot style SB-744M, is a man's over-the calf
fleece-lined boot with a rubber sole and an upper of
rubber/plastics.  It has a one inch wide "velcro" tightening
strap approximately three inches below the topline.  The inside
of the boot has a textile-fur imitation fleece lining which
extends one-half inch above the topline of the boot shaft.  This
boot is marketed as having "Thinsulate" thermal insulation.  From
a point 3 cm above the top of the outer sole, the upper is
entirely of nonmolded construction formed by sewing the parts
together and has exposed on the outer surface a substantial
portion of functional stitching.  The protestant advises us that
there is no difference in construction between the men's and
ladies's snow boots.  Based on the construction of the boot, it
is designed to be protective from cold or inclement weather.






     The entry covering style SB-744M was liquidated on September
24, 1993, under subheading 6402.91.50, Harmonized Tariff Schedule
of the United States (HTSUS), as protective footwear, with duty
at the rate of 37.5% ad valorem.  The protest was timely filed on
December 7, 1993.  

     Counsel on behalf of the protestant claims that style SB-
744M is properly classifiable under subheading 6402.91.40, HTSUS,
as footwear other than protective footwear, with duty at the rate
of 6% ad valorem. 

ISSUE: 

     Is the imitation fleece lining which extends one-half inch
above the topline of the shaft considered external surface area
of the upper (ESAU)?

LAW AND ANALYSIS: 

     Classification of goods under that 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 taken in order]."  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:
     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 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 . . . 
  
     The U.S. Customs Laboratory Report 5-93-21076-001 dated
August 18, 1993, states that "[t]he 'fur' exposed around the top
of this boot is a textile product, so it was calculated as
textile in the ESAU."  Consequently, textile was found to occupy
12% of the ESAU while plastic was found to occupy 88% of the
ESAU.  Protestant disagrees with the Customs laboratory's
determination that textile occupies 12% of the ESAU noting that a
private laboratory (Customs Science Services, Inc.] measurement,
excluding the lining appearing above the shaft, found that
textile occupied 6.77% of the ESAU and plastic occupied 93.2% of
the ESAU.   Protestant argues that the "fur" which appears above
the topline of the shaft should not be counted as ESAU.  The fact
that the "fuzz" at the topline of the boot happens to be visible
is "because this is the line where the external surface and the
internal surface (the fleece lining) meet and are joined
together.  The fuzz was not a stylistic choice or even
deliberate; it was purely an accident of construction."  

     Protestant states that Customs has issued rulings on similar
boots which state that if the fleece lining cannot be cuffed,
then it was not to be considered in determining the ESAU.  See,
e.g. Headquarters Ruling Letter (HRL) 951444 dated June 4, 1992. 
First, HRL 951444 is not controlling because the boots in issue
in that case did not have fleece linings which extended one-half
inch above the topline of the shaft as is the case with the
instant boot.  It is our position that the fleece boot lining
which extends one-half inch above the topline of the  boot shaft
should be included in determining the ESAU even though the boot
does not appear to be cuffable.  While it is not our intention to
include lining material for non-cuffable boots in an ESAU
determination, the substantial extension of this material is
clearly intentional as part of the boot's styling.  This
intentional extension makes it more than mere lining material
protruding from the interior.  If the exposed portion of the
lining was not an intentional design feature and not meant to be
seen, it could easily be shorn away during the manufacturing
process.  The lining material is clearly intended to be seen and
becomes part of the ESAU.  In fact, it is the only material
covering the wearer's leg in the area where it is visible.       

HOLDING:

     The imitation fleece lining which extends one-half inch
above the topline of the shaft is considered ESAU.  Therefore
style SB-744M has an ESAU which is not over 90% rubber or
plastics. 

     Style SB-744M 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, 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, Lexis,
Freedom of Information Act and other public access channels. 

                                   Sincerely, 



                                   John Durant, Director 
                                   Commercial Rulings Division 


Source: rulings.cbp.gov — ruling 955919, retrieved 2026-10-12T05:29:11Z, republished verbatim. This digest is informational; only CBP issues binding rulings.

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