HQ 081596: ubmitted forexamination.

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 081596

                         January 27, 1988

                                             CLA-2:CO:R:C:G
                                             081596 c
                                             825551


Hanbee America, Inc.
175 Anderson Avenue
Moonachie, New Jersey 07074

Gentlemen:

     In a letter dated September 14, 1987, you inquired as to
the dutiable status under the proposed Harmonized Tariff
Schedule of the United States (HTSUS), of certain children's
boots manufactured in Korea.  Samples were submitted for
examination.

     The samples labelled "Hanbee A" and "Hanbee B" are of moon
boot construction and have polyurethane uppers.  The sidewall
of the cupsole in "Hanbee B" is a little taller then the one in
"Hanbee A".

     It is your view that these boots are dutiable at the rate
of 6 percent ad valorem under subheading 6402.91.4075 which
provides for other footwear with outer soles and uppers of
rubber or plastics, other footwear, covering the ankle, 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 a 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 3cm 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.

     The issue to be determined here is whether the footwear
remains classifiable under subheading 6402.91.4075 by virtue of
meeting the exception to the second exception.  Specifically,
how do we choose the location of the point on the "top of the
outer sole" from which to measure the 3 centimeters?

                              - 2 -

     In this instance, if the measurement is taken from the
inside bottom of the honeycomb structure of the outer sole, the
sidewall exceeds 3 centimeters.  If the measurement is taken
from the top of the honeycomb, the sidewall does not exceed 3
centimeters.  This is the case for both samples.  It is our
position with respect to the standard moon boot bottom that the
"top of the outer sole" is not the top of the honeycombed wedge
but the flat surface one touches when one's finger is put
through the "honeycomb".

     Inasmuch as the uppers of the samples are not entirely of
non-molded construction from a point 3 centimeters above the
top of the outer sole they are precluded from classification
under subheading 6402.91.4075 because they are protective
footwear classifiable under subheading 6402.91.5090 as other
footwear with outer soles and uppers of rubber or plastics,
other footwear, covering the ankle, 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.  This classification represents the present position
of the Customs Service regarding the dutiable status of the
merchandise under the proposed HSTUS.  If there are changes
before enactment, this advice may not continue to be
applicable.

                              Sincerely,

                              John Durant
                              Acting Director
                              Commercial Rulings Division