CLA-2 CO:R:C:M 088403 DFC
District Director of Customs
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street
Boston, MA 02222-1052
RE: Decision on Application for Further Review of Protest
No. 0401-90-000373
Dear Sir:
This protest was filed against your decision in the
liquidation of an entry covering a shipment of women's snow
boots produced in Taiwan.
FACTS:
The merchandise involved is a women's calf-high snow boot
called the "Colorado" which measures approximately 9 inches
high with the top of the shaft turned down. This boot has a
set of snap closures and a V cut at the top of the shaft. The
size and country of origin label is located approximately 3-1/2
inches down from the top of the shaft. A laboratory analysis
shows that when the top of the shaft is folded and snapped into
place the external surface area of the upper is under 90 percent
rubber/plastics.
The entry covering these snow boots 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.
-2-
Counsel for the protestant maintains that the boots are
properly classifiable under subheading 6402.91.40, HTSUSA, 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 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.
ISSUE:
Does the boot have an upper the external surface area of
which is over 90 percent plastics?
LAW AND ANALYSIS:
Counsel for the protestant argues that the portion of the
boot's uppermost interior lining when folded down to create a
cuff cannot be included as external surface area of the boot's
upper. The rationale for this position is said to be found in
the case of Inter-Pacific Corp. v. United States, 8 CIT 132
(1984). Specifically, in order to be considered a part of
the external surface area of the upper the folding down of
the interior lining to create the cuff must be the "permanent"
configuration of the upper. In this case the boot may be worn
either cuffed or not cuffed. Thus, counsel claims that the
configuration of the boot in its cuffed condition is not
"permanent" and the folded down portion of the interior lining
cannot be included as part of the external surface area of the
upper.
Counsel for the protestant sets forth the following reasons
why the boots are not designed to be worn in a cuffed position:
1. A design feature consisting of a strap on the
back seam of the boot would be partially obscured
by folding.
-3-
2. The lining material is the same throughout the
entire length of the interior of the shaft.
3. The boot's uppers do not lie flat when folded
down.
4. The top of the shaft is "bifurcated" or slitted
which enables the wearer to more easily insert
the legs of jeans into the boot, and which also
causes the rolled over shaft to have a "butterfly"
appearance which contradicts the notion that the
boot's top is intended to be folded down.
5. The boots do not possess fold lines which would provide their wearer with any indication of where the boots should be folded over.
6. The interior fleece-type material exhibits no
special characteristics which would suggest to
the wearer that the boots should be worn with the
top portion folded over.
It is our observation that the presence of the snap
closures at the top of the shaft is conclusive evidence that the
boots were designed to be worn cuffed. Further, we submit that
the configuration of the boots in their cuffed condition can be
considered "permanent" noting that when worn with the shaft
turned up the metal snap closures are visible rendering the boots
much less "stylish" and possibly unattractive.
The remaining reasons cited by counsel for the protestant
as to why the boots are not designed to be worn in a cuffed
position are not persuasive. For example, the design feature
in the form of a strap in the upper portion of the outer shaft,
which is said to make the boots stylish, is partially obscured
when they are cuffed. An examination of the sample reveals that
the strap is not obscured at all when the boots are worn cuffed.
It is contended on behalf of the protestant that the boot's
uppers do not lie flat when folded down. It is our observation
that the uppers do lie flat especially since they are held in
place by snap closures.
The absence of fold lines to show where the shafts are to
be folded over is not a relevant factor here because the snap
closures dictate the posture of that portion of the shaft which
is folded down.
-4-
With respect to the fleece lining material, it is our
opinion that it is in fact very attractive and would be the
type of material used in cuffed boots as is the case here.
HOLDING:
The boots are dutiable at the rate of 37.5 percent ad
valorem under 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