HQ 081095: Tariff classification of moon boots

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 081095

                                     July 21, 1988

            CLA-2 CO:R:C:G  082095 DSN

            CATEGORY:  Classification

            TARIFF NO.: 700.5700

            Mr. Keith Burdette
            K.C. Burdette Company, Inc.
            45 John Street, Suite 801
            New York, New York  10038

            RE:  Tariff classification of moon boots

            Dear Mr. Burdette:

                 This is in response to your inquiry of January 14, 1988,
            in which you requested tariff classification under the Tariff
            Schedules of the United States Annotated (TSUSA), and the
            Harmonized Tariff Schedule of the United States Annotated
            (HTSUSA), for seven products from Korea on behalf of Hi-Grade
            System Corp.  Classification of six of the items was provided
            by our New York office.  The remaining item, a moonboot, was
            submitted for examination to determine classification under the
            TSUSA only.

            FACTS:

                 The sample, labelled number six, has an outer surface of
            woven fabric with a layer of non-transparent polyurethane
            plastic.  The coated fabric is considered to be wholly of
            rubber or plastic.  The inside of the fabric is bonded to a
            layer of foam plastic which is bonded on the other side to an
            open mesh tricot fabric.  The bottom insole is sewn to the
            upper.  The moonboot features a bootie-liner which is also sewn
            to the upper.  The bootie-liner is composed of a foam plastic
            core bonded on the outside to a open mesh tricot fabric, and is
            bonded on the inside to a woven fabric.  We do not know how the
            article will be completed, but we assume either by a one-color
            molded bottom or by a two-color molded bottom.

            ISSUE:

                 Whether the article is unfinished footwear, and if so, is
            the method of completion relevant for classification purposes.
















                                         - 2 -

            LAW AND ANALYSIS:

                 General Interpretative Rule 10(h) TSUSA, provides that a
            tariff description for an article covers such article, whether
            assembled or not assembled, and whether finished or not
            finished.  A leading case interpreting 10(h) with respect to
            whether an article is unfinished, is Daisy-Heddon, Div. Victor
            Comptometer Corp. v. United States, 66 CCPA 97, C.A.D. 1228
            (1979).  The court listed five factors to help determine
            whether an article should be considered unfinished for tariff
            purposes.  The five factors are as follows:

                 1.  Comparison of the number of omitted parts with the
                     number of included parts;

                 2.  comparison of the time and effort required to complete
                     the article with the time and effort required to
                     place it in its imported condition;

                 3.  comparison of the cost of the included parts with that
                     of the omitted parts;

                 4.  the significance of the omitted parts to the overall
                     functioning of the completed article; and

                 5.  trade customs, i.e., does the trade recognize the
                     importation as unfinished article or as merely
                     part of the article.

            The court recognized that these factors are merely guidelines
            and that fewer than all the above factors, or additional
            factors may come into play depending on the particular
            merchandise.

                 With respect to factor number one, this merchandise
            consists of three parts; the upper, bootie-liner, and a bottom.
            The part that is omitted to fully complete the article is the
            molded bottom.  However, the merchandise is still recognizable
            as a boot, having an upper and a closed bottom that covers the
            entire foot.

                 We do not have the relevant information to address factors
            two and three.  With respect to factor four, the significance
            of the omitted part, namely the type of molded bottom, is
            important to the overall functioning of the completed footwear
            but not in determining whether the article is substantially
            complete, because the complete upper with a full bootie-liner
            has been processed to the point of being identified as a boot.














                                         -3 -

            An article is unfinished if it has been so far processed toward
            its ultimate completed form as to be dedicated to the making of
            that article.  American Import Co. v. United States, 26 CCPA
            72, TD 49612 (1938).

                 The above case was cited as authority in T.D. 86-144,
            which dealt with the issue of whether duck-type footwear was
            considered unfinished.  We held that the duck-type footwear in
            its imported condition was substantially complete footwear
            because it was so far processed as to be dedicated to the
            making of a class of articles alone, namely, footwear.  In that
            case, the duck-type footwear upper needed to be stitched and in
            some instances an insole inserted.  In the instant case, the
            article has a full bootie-liner but lacks the molded bottom.
            We believe that the above case and the instant case are
            similar, in that both articles are substantially complete,
            because they give the overall visual impression of finished
            footwear, despite their omissions.  As previously stated, the
            instant merchandise has the shape and look of a boot with an
            upper and a closed bottom that covers the foot.  Therefore,
            applying Daisy-Heddon, classification of this article would be
            as unfinished footwear.  We note that with respect to factor
            five, there is no consensus in the trade as to what constitutes
            unfinished footwear.

                 Having established that the merchandise is to be treated
            as unfinished footwear, we look to various methods of
            completion in order to determine classification.  The article
            may be completed by applying either a one or a two color molded
            rubber bottom.  If a one color molded bottom is applied,
            classification would be under item 700.5600 TSUSA.  If a two
            color molded bottom is applied, we must consider the
            possibility of a foxing-like band being present.  In such a
            case, classification would be under item 700.5700 TSUSA.
            General Interpretative Rule 10(d), states that if two or more
            tariff descriptions are equally applicable to an article, such
            article shall be subject to the duty under the description for
            which the original statutory rate is highest.  The orginial
            statutory duty rate is determined by looking at column two in
            the tariff.  Item 700.5600 has an original statutory rate of 35
            percent ad valorem.  Item 700.5700 has an original statutory
            rate of 66 percent ad valorem.  Since item 700.5700 has the
            highest duty rate, that provision is applicable.   



















                                         - 4 -

            HOLDING:

                 In view of the foregoing, the moonboots are properly
            classified under the provision for footwear which is over 50
            percent by weight of rubber or plastics or over 50 percent by
            weight of fibers and rubber or plastics with at least 10
            percent by weight being rubber or plastics, 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, item 700.5700 TSUSA, dutiable at the rate of
            37.5 percent ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division