CLA-2 CO:R:C:M 089265 DFC

Mr. Bruce A. Bell
W. N. Proctor Company, Inc.
115 Broad Street, P.O. Box 192
Boston, Massachusetts 02101

RE: Footwear; Upper, external surface area, measurement

Dear Mr. Bell:

In a letter dated April 23, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two boots manufactured in Korea. Two samples without style numbers or names were submitted for examination. Inasmuch as your request does not set forth the external surface area measurements of the uppers of these boots, we are unable to advise you as to their tariff classification. However, we will answer the question which pertains to measurement of the external surface areas of the boots' uppers.


The samples submitted are boots with rubber, duck bottoms, and lace-up shafts of leather and textile. The shafts are closed in the front by "gussets" which run the full height of the shafts.


Should the gusset, or part of the gusset be included in the measurement of the external surface area of the boots' uppers?


Legal Note 4(a) to Chapter 64, HTSUSA, provides that "[t]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."

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The boots involved incorporate a feature called a gusset. You point out that while the gusset is located in the same general area as a tongue, it is different than a tongue and should be treated differently than a tongue. Further, you state an understanding that while Customs has a practice of not counting the tongue as part of the exterior surface area of the upper, you are not aware of any such Customs position relating to gussets.

With respect to your understanding of our practice relating to the measurement of tongues, your attention is invited to T.D. 84-59 which reads in pertinent part as follows:

In support of their position, the commenters cited T.D. 54659 which contains legislative history pertaining to paragraph 1530(e), Tariff Act of 1930. Under this paragraph, rubber-soled footwear with uppers of fabric and certain other materials was originally dutiable at the rate of 35 percent ad valorem. The legislative history referred to states that conventional tongues of this type of footwear are not included in the "greater area of the outer surface." It is also asserted that there is nothing in this legislative history which indicates any intention to exclude only certain types of tongues, such as those on the plane lower than a portion of the upper, from the computation of exterior surface area.

It is Customs position that the above-cited legislative history is applicable only to paragraph 1530(e), Tariff Act of 1930. Since the language of the Tariff Act of 1930 was not carried forward to the Tariff Schedules of the United States, Customs does not believe that this legislative history is applicable.

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.

The sample boots have gussets made of textile material. You describe the gussets as follows:

When open, the exterior surfaces of both boots' gussets appear divided into three parts, a center and two side panels. The side panels are distinguished from the center by color, and, in the case of the "green" sample by the presence of leather over the textile. When the boots are - 3 -

ordinarily laced and worn, the center of the gusset remains unseen, while the side panels are clearly visible and designed to be so.

In view of the foregoing, you urge that Customs should include as external surface area of the uppers only that part of the gusset which will be visible when worn, i.e., the side panels.

In Headquarters Ruling Letter (HRL) 084574 dated November 30, 1989, Customs ruled that a bellows-type tongue was not considered to be part of the external surface area of the upper. The rationale for that position was that the plane curve of the tongue was on a lower plane than the outer plane curve made up of the shaft, the eyelet stays, and the laces that connect the eyelet stays. It is our view that the gussets here are essentially the same as the bellows-type tongue ruled on in HRL 084574 because the gussets are on "a plane lower than a portion of the upper and [are] partially or wholly covered by laces and eyelet facings or stays." Consequently, it is our opinion that the gussets in these boots should not be included as part of the external surface area of their uppers.


The gussets should not be included in the measurement of the external surface area of the boots' uppers.

Your samples are being returned under separate cover.


John Durant, Director
Commercial Rulings Division