February 26 1991
CLA-2:CO:R:C:G 087788 SR
Mr. Edward Ackerman
Siegel, Mandell & Davidson
One Whitehall Street
New York, N.Y. 10004
RE: Duck shoe
Dear Mr. Ackerman:
This is in reference to your letter dated August 22, 1990,
requesting the tariff classification of a duck shoe under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample was submitted.
The merchandise at issue is a three-eyelet lace-up boot
which does not cover the ankle. The boot consists of a beige
molded rubber/plastic "duck" style bottom, a two inch high
leather shaft with a plastic top-line trim, six metal eyelets,
and a separate leather tongue. The Customs Headquarters Office
of Laboratories and Scientific Services determined that the
exterior surface area of the shoe's upper consists of 54 percent
rubber/plastic and 46 percent leather.
What makes up the external surface area of the shoe at
LAW AND ANALYSIS:
Note 4(a) to Chapter 64, HTSUSA, states that 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. Therefore, in order to classify this footwear at
issue it must be determined what material makes up the external
surface area of the shoe.
The importer claims that the tongue of the duck shoe should
be considered to be the external surface because a large portion
of the tongue is permanently exposed. We disagree with this
position. T.D. 84-59, 18 Cust. Bull. 166 (1984), reads as
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 to 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.
Headquarters Ruling Letter (HRL) 084574, dated November 30,
1989, dealt with this same issue. It referred to T.D. 84-59 and
stated as follows:
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. 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 eyelet stays which can be narrow or
wide depending on the construction of the shoe or the size
of the foot it is worn on.
The tongue on the shoe at issue is at a lower plane than
that of the shaft and the eyelet stays and laces. In this shoe
the bottom edge is also the only place where the tongue is not on
a plane curve lower than the upper. The tongue in this shoe is
not considered to be part of the external surface area.
The Explanatory Notes to Chapter 64 state as follows:
C. The term "outer sole" as used in headings 64.01 to 64.05
means that part of the footwear (other than an attached
heel) which, when in use, is in contact with the ground.
The constituent material of the outer sole for purposes of
classification shall be taken to be the material having the
greatest surface area in contact with the ground. In
determining the constituent material of the outer sole, no
account should be taken of attached accessories or
reinforcements . . .
In the case of footwear made in a single piece (e.g.,
clogs) without applied soles, no separate outer sole is
required; such footwear is classified with reference to the
constituent material of its lower surface.
D. For the purposes of the classification of footwear in this
Chapter, the constituent material of the uppers must also be
taken into account. The upper is the part of the shoe or
boot above the sole. However, in certain footwear with
plastic moulded soles or in shoes of the American Indian
moccasin type, a single piece of material is used to form
the sole and either the whole or part of the upper, thus
making it difficult to identify the demarcation between the
outer sole and the upper. In such cases, the upper shall be
considered to be that portion of the shoe which covers the
sides and top of the foot. The size of the uppers varies
very much between different types of footwear, from those
covering the foot and the whole leg, including the thigh
(for example fisherman's boots), to those which consist
simply of straps or thongs (for example sandals).
The upper of this shoe is measured from the side of the
foot. The side of the foot begins where the shoe curves up
around the foot; not at the top of the beige foxing-like band.
The shoe is made of rubber from the point where the upper begins
up to where the leather is attached. Therefore, the upper is
predominantly of rubber/plastic.
The shoe at issue is classifiable under subheading
6402.99.20, HTSUSA, which provides for other footwear with outer
soles and uppers of rubber or plastics, other footwear, other,
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 rate of duty is 37.5 percent.
John Durant, Director
Commercial Rulings Division