HQ 089265: Footwear; Upper, external surface area, measurement

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 089265

                         August 27, 1991


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

CATEGORY:  Classification

TARIFF NO.: N/A

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.

FACTS:

     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.

ISSUE:

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

LAW AND ANALYSIS:

     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."



                            - 2 -

     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.

HOLDING:

     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.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division