HQ 082083: Classification of a women's rubber boot with a foxing-like band

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 082083

                                   February 10, 1989


            CLA-2:CO:R:C:G  082083  SR

            CATEGORY:  Classification

            TARIFF NO.:  HTSUS 6402.91.50

            Mr. Ike Matitia
            International Seaway Trading Corp.
            1382 West 9th Street
            Cleveland, Ohio  44113

            RE:  Classification of a women's rubber boot with a foxing-like
                 band

            Dear Mr. Matitia:

                 This is in reference to your letter dated November 16,
            1987, in which you requested the tariff classification of a
            women's boot.  The Harmonized Tariff Schedule of the United
            States Annotated (HTSUSA) became effective on January 1, 1989,
            consequently, we are only issuing rulings under the HTSUSA.

            FACTS:

                 The merchandise at issue is a women's boot which is
            approximately 10 3/4 inches in height.  It has a plastic upper
            that is functionally stitched to a unit molded rubber sole.
            There is a gap between the bottom edge of the plastic upper and
            the top of the outer sole of approximately 3/16 of an inch at
            the ball of the foot, but there is no gap in the toe area.
            There is a rubber sidewall around the shoe which is 3/4 inch
            high at the front of the boot and 1-1/8 inches high at the
            heel.  The boot has a side zipper closure and a textile lining.

            ISSUE:

                 Whether the boot at issue has a foxing-like band.






















                                          -2-

            LAW AND ANALYSIS:

                 The importer claims that the boot at issue should be
            classified under subheading 6402.91.40, HTSUSA, 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 is rubber or
            plastics, except footwear having a foxing-like band applied or
            molded at the sole and overlapping the upper, and 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 at a duty rate of 6
            percent.

                 The boot does meet the description provided in subheading
            6402.91.40, HTSUSA, and the 3 cm exception, however, it does
            not meet the foxing-like band exception.  T.D. 83-116 states
            that a sole that is molded to look like a foxing can be a
            foxing-like band even if it performs no function.  A design
            feature in the form of a band must be applied or molded at the
            sole and overlap the upper.  Unit-molded footwear is considered
            to have a foxing-like band if a vertical overlap of 1/4 inch or
            more exists from where the upper and the outsole initially
            meet.  A foxing-like band must also encircle or substantially
            encircle the entire shoe.

                 The band around the boot at issue meets this description
            of a foxing-like band.  The band resembles a foxing and
            encircles the entire shoe.  It is molded at the sole and
            overlaps the upper by more than 1/4 inch.  The cupsole which
            acts as a foxing-like band does overlap the upper throughout
            most of the shoe.

                 The sidewall of the boot at issue is not high enough for
            the boot to be considered a moon boot.  It has small mudguards
            that resemble a foxing whereas moon boots have sidewalls that
            are about 4 inches high that cover the foot.  In a moon boot
            the upper does not extend down to the top of the outsole.  In
            the boot at issue the bottom of the plastic upper does touch
            the top of the outer sole in parts of the shoe.


















                                         - 3 -

            HOLDING:

                 The boots at issue are classifiable under subheading
            6402.91.50, HTSUSA, which provides for footwear, in which the
            upper's external surface is predominately rubber and/or
            plastics; in which the sole's external surface is predominately
            rubber and/or plastics; which is other than sports footwear; in
            which the top of the upper is above the wearer's ankle bone;
            which is designed to be a protection against water, oil, or
            cold or inclement weather; which is other than waterproof; and
            which has a foxing-like band.  The rate of duty is 37.5 percent
            ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division




































            6cc:  Area Director, New York Seaport
            SRosenows:jaj:1/23/89