HQ 081977: Classification of boots with a "cascade bottom"

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 081977

                                 September 22, 1988





          CLA-2 CO:R:C:G  081977 SR  827671

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.50

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

          RE:  Classification of boots with a "cascade bottom"

          Dear Mr. Feuer:

               This is in reference to your letter dated January 12, 1988,
          requesting the tariff classification of boots with a "cascade
          bottom" under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA).  A sample of a boot sole was submitted for
          examination.

          FACTS:

               The merchandise in question is a boot with a "cascade
          bottom."  The "cascade bottom" is similar in design to the
          honeycomb sole, however, it has circular holes rather than square
          holes and is more substantial in weight and volume.  The sole has
          23 holes which are one centimeter in diameter and average
          approximately 1 centimeter deep varying with the thickness of the
          sole.  If the measurement to the top edge of the sidewall is
          taken from the surface at the top of the holes then the height of
          the sidewall is under 3 centimeters.  If the measurement is taken
          from the bottom of the cylindrical holes then the height is over
          3 centimeters.

          ISSUE:

               Whether the "top of the outer sole" is measured from a point
          on the surface at the top of the holes and therefore within the 3
          centimeters exception of subheading 6402.91.40, HTSUSA.
          2















                                        - 2 -
          LAW AND ANALYSIS:

               Subheading 6402.91.40, HTSUSA, 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 3 cm 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.

               Headquarters Ruling Letter (HRL) 081596, dated January 27,
          1988, dealt with the same issue for boots with honeycomb soles.
          Honeycomb soles are similar to the cascade bottom except they
          have large square holes rather than small round holes.  This
          ruling determined that the "top of the outer sole" is measured
          from the flat surface one touches when one's finger is put
          through the honeycomb.

               The boot soles at issue are molded soles made of rubber and
          they differ from the leather "flat top" soles in most shoes in
          that their height and thickness vary throughout the sole.  The
          holes are similar to the holes in the honeycomb sole in that they
          get progressively deeper as the thickness of the rubber
          increases.  The thickness of the rubber in the lower part of the
          sole between the bottom of the holes and the ground remains
          consistant throughout the shoe.  The height of the sidewall in
          the cascade bottom, as in the honeycomb sole, must be measured
          from the bottom of the holes since they are of a constant height
          from the bottom of the shoe.  When measured from the bottom of
          the holes the height of the sidewall exceeds 3 centimeters.

          HOLDING:

               "Cascade bottoms" are boot soles similar in construction to
          honeycomb soles and are subject to the same measurement standard
          for determining sidewall height.  Because the molded sidewall of
          the sole in question is more than 3 centimeters above the top of
          the outer sole it is precluded from classification under
          subheading 6402.91.40, HTSUSA.  It is our position that boots
          using this sole should be classified under subheading 6402.91.50,
















                                         -3-

          HTSUSA, as other footwear with 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, chemicals, cold, or
          inclement weather.  The rate of duty for this provision is 37.5
          percent ad valorem.

               This classification represents the present position of the
          Customs Service regarding the dutiable status of the merchandise
          under the proposed HTSUSA.  If there are changes before enactment
          this advice may not continue to be applicable.

                                          Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division