HQ 087788

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 issue?


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 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 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