Protest 2002-93-001906; Footwear, boot, snow; Upper, external surface area; HRL 951444

HQ 955919 June 6 1994 CLA-2 CO:R:C:M 955919 DFC CATEGORY: Classification TARIFF NO.: 6402.91.50 District Director of Customs Suite 244 423 Canal Street New Orleans, Louisiana 70130-2341 RE: Protest 2002-93-001906; Footwear, boot, snow; Upper, external surface area; HRL 951444 Dear District Director: This is in response to Protest 2002-93-001906, covering a shipment of men's and women's snow boots produced in China. A sample was submitted for examination. Our decision as to the classification of these snow boots is also applicable to the identical snowboots which are the subject of protests 2002-93- 001905 and 2002-93-001907, which you forwarded to this office on February 24, 1994. FACTS: The sample, identified in protestant's letter dated May 4, 1994, as Igloo Snow boot style SB-744M, is a man's over-the calf fleece-lined boot with a rubber sole and an upper of rubber/plastics. It has a one inch wide "velcro" tightening strap approximately three inches below the topline. The inside of the boot has a textile-fur imitation fleece lining which extends one-half inch above the topline of the boot shaft. This boot is marketed as having "Thinsulate" thermal insulation. From a point 3 cm above the top of the outer sole, the upper is entirely of nonmolded construction formed by sewing the parts together and has exposed on the outer surface a substantial portion of functional stitching. The protestant advises us that there is no difference in construction between the men's and ladies's snow boots. Based on the construction of the boot, it is designed to be protective from cold or inclement weather. The entry covering style SB-744M was liquidated on September 24, 1993, under subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), as protective footwear, with duty at the rate of 37.5% ad valorem. The protest was timely filed on December 7, 1993. Counsel on behalf of the protestant claims that style SB- 744M is properly classifiable under subheading 6402.91.40, HTSUS, as footwear other than protective footwear, with duty at the rate of 6% ad valorem. ISSUE: Is the imitation fleece lining which extends one-half inch above the topline of the shaft considered external surface area of the upper (ESAU)? LAW AND ANALYSIS: Classification of goods under that HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes. The competing provisions are as follows: 6402 Other footwear with outer soles and uppers of rubber or plastics: * * * Other Footwear: 6402.91 Covering the ankle: 6402.91.40 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 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 . . . Other: 6402.91.50 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 U.S. Customs Laboratory Report 5-93-21076-001 dated August 18, 1993, states that "[t]he 'fur' exposed around the top of this boot is a textile product, so it was calculated as textile in the ESAU." Consequently, textile was found to occupy 12% of the ESAU while plastic was found to occupy 88% of the ESAU. Protestant disagrees with the Customs laboratory's determination that textile occupies 12% of the ESAU noting that a private laboratory (Customs Science Services, Inc.] measurement, excluding the lining appearing above the shaft, found that textile occupied 6.77% of the ESAU and plastic occupied 93.2% of the ESAU. Protestant argues that the "fur" which appears above the topline of the shaft should not be counted as ESAU. The fact that the "fuzz" at the topline of the boot happens to be visible is "because this is the line where the external surface and the internal surface (the fleece lining) meet and are joined together. The fuzz was not a stylistic choice or even deliberate; it was purely an accident of construction." Protestant states that Customs has issued rulings on similar boots which state that if the fleece lining cannot be cuffed, then it was not to be considered in determining the ESAU. See, e.g. Headquarters Ruling Letter (HRL) 951444 dated June 4, 1992. First, HRL 951444 is not controlling because the boots in issue in that case did not have fleece linings which extended one-half inch above the topline of the shaft as is the case with the instant boot. It is our position that the fleece boot lining which extends one-half inch above the topline of the boot shaft should be included in determining the ESAU even though the boot does not appear to be cuffable. While it is not our intention to include lining material for non-cuffable boots in an ESAU determination, the substantial extension of this material is clearly intentional as part of the boot's styling. This intentional extension makes it more than mere lining material protruding from the interior. If the exposed portion of the lining was not an intentional design feature and not meant to be seen, it could easily be shorn away during the manufacturing process. The lining material is clearly intended to be seen and becomes part of the ESAU. In fact, it is the only material covering the wearer's leg in the area where it is visible. HOLDING: The imitation fleece lining which extends one-half inch above the topline of the shaft is considered ESAU. Therefore style SB-744M has an ESAU which is not over 90% rubber or plastics. Style SB-744M is dutiable at the rate of 37.5% ad valorem under subheading 6402.91.50, HTSUS. The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director Commercial Rulings Division