Protest 2704-95-100726; Footwear, ESAU, Cuffed boot; HRL's 088730, 088956, 088403, 088353
Active· CBP ruling HQ 957816· Issued 1995-07-14
Ruling text
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
Source: rulings.cbp.gov — ruling 957816, retrieved 2026-10-12T05:30:18Z, republished verbatim. This digest is informational; only CBP issues binding rulings.