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HQ 962550





June 26, 2001

CLA-2 RR:CR:TE 962550 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

Ms. Kathleen Haage
Port Director
United States Customs Service
1210 Corbin Street
Third Floor
Elizabeth, New Jersey 07201

RE: Protest with Application for Further Review, Protest Number 1001-98-102282; Ladies’ Cold Weather Boot.

Dear Ms. Haage:

This letter is in response to protest number 1001-98-102282 with application for further review, dated July 7, 1998, timely filed by Ross & Hardies, 65 East 55th Street, New York, New York, 10022-3219, on behalf of North Walk, Ltd. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two styles of a woman's cold weather boot.

The two boots examined by the Customs Laboratory and identified by the names Jaqueline and Lisa, are identical in all respects except that style Lisa has a different plastic material on the vamp and heel counter. The boots are women’s over-the-ankle protective footwear. The outsoles are composed of rubber/plastics. The uppers are primarily rubber/plastics. The uppers have a textile top line, a metal zipper, and textile embroidery on the outside heel counter. Customs laboratory analysis indicates that the external surface area of the upper (ESAU), including accessories and reinforcements, for style “Jaqueline” is composed of 88.5% rubber/plastics and 11.5% textile material and metal. Customs laboratory analysis indicates that the ESAU, including accessories and reinforcements, for style “Lisa” is composed of 88.6% rubber/plastics and 11.4% textile and metal.

On January 19, 2001, in preparation for a conference between Counsel for the Protestant (Counsel) and Customs, Counsel submitted an additional sample of what was believed to be style “Lisa.” Upon comparing the boot submitted on January 19, 2001, with the notes and photographs contained in the report generated by the Customs Laboratory, it became readily apparent that the footwear submitted on January 19, 2001 was not the same footwear that was examined by the Customs Laboratory. The major difference between the two boots is that the style boot examined by the Customs Laboratory had a definite top line of textile material, giving the appearance that the boot was cuffed. Whereas, the style Lisa submitted by Counsel on January 19, 2001, had a small textile top line amounting to no more than a fringe.

Due to the confusion surrounding the two versions of the footwear, Counsel examined the footwear that had been tested by the Customs Laboratory. Upon visual inspection of the footwear, Counsel verified that they were not the same boots, in style, construction or component materials, as the boot submitted on January 19, 2001.

The basis of the Protest is that the ESAU, including accessories and reinforcements, of the boots, is over 90% rubber and plastics. The boot tested by Customs clearly has an ESAU that is under 90% rubber and plastics, whereas the boot submitted on January 19, clearly has an ESAU that composed of over 90% rubber and plastics. Because the facts of the Protest are based on a boot different than the boot imported and tested by the Customs Laboratory, Counsel proffered that protest should be denied. Accordingly, protest number 1001-98-102282 is denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels

Sincerely,

John Durant, Director
Commercial Rulings Division


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