CLA-2 CO:R:C:M 088353 DFC
District Director of Customs
7911 Forsythe Blvd., Suite 625
St. Louis, Missouri 63105
RE: Decision on Application for Further Review of
Protest No. 4503-90-100018
Dear Sir:
This protest was filed against your decision in the
liquidation on March 30, 1990, of entry no. XXX-XXXXXXX
dated September 22, 1989, covering ladies footwear
manufactured in Taiwan.
FACTS:
The entry covering the plastic ladies' boot in issue,
describe as style no B00846 "Fur Cuff Fold Down," was
liquidated 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. The
applicable rate of duty for this provision is 37.5 percent
ad valorem.
The protestant maintains that the boot is properly
classifiable under subheading 6402.91.40, as 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
-2-
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. The applicable rate of duty for this
provision is 6 percent ad valorem.
Issue:
Does the boot have an upper the external surface area of
which is over 90 percent plastics?
LAW AND ANALYSIS:
The protestant asserts that the plastic boot is neither
constructed nor designed to permit the top of the boot shaft to
be folded over, or cuffed down. While the presence of the label
having the legend "Fur Cuff Fold Down" may indicate an intended
use in a fold down condition, an examination of the boot
demonstrates that the manufacturer has designed and produced a
boot that is incapable of such use. Thus, the boot when used as
intended would not be cuffed and the external surface area of the
upper would be over 90 percent rubber or plastics which would
require classification of the boot under subheading 6402.91.40,
HTSUSA, as claimed.
It is your opinion that the boot is designed to be worn
cuffed for the following reasons:
(1) the label is easily removed;
(2) the label contains the statement "Fur Cuff Fold Down";
(3) the different and better looking material at the top of
the shaft liner (fake fur v. fake pile).
(4) the cuff lies perfectly flat and there are no wings
when folded down;
(5) the notch at the back of the upper makes it easy to
fold the cuff down; and
-3-
(6) the label, if not removed, would be unpleasant against
the leg.
We agree with your reasoning and the conclusion reached that
the boot is designed to be worn cuffed. Consequently, since the
external surface of the boot's upper is not over 90 percent
plastics, it is precluded from classification under subheading
6402.91.40, HTSUSA.
HOLDING:
The ladies' boot is dutiable a the rate of 37.5 percent ad
valorem under subheading 6402.91.50, HTSUSA.
The protest should be denied. A copy of this decision
should be attached to the Form 19 Notice of Action to be sent to
the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division