HQ 087788: Duck shoe

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 087788

                                  February 26 1991



          CLA-2:CO:R:C:G  087788  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.50

          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.

          FACTS:

               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.

          ISSUE:

               What makes up the external surface area of the shoe at
          issue?

          LAW AND ANALYSIS:

               Note 4(a) to Chapter 64, HTSUSA, states that the material of
          the upper shall be taken to be the constituent material having














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          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


















                                         -3-

          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.  



















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          HOLDING:

               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.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division