HQ 083521: Classification of a man's cold weather boot

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 083521

                                     May 2, 1989


          CLA-2:CO:R:C:G  083521  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.4015

          Mr. John B. Pellegrini
          Ross & Hardies
          529 Fifth Avenue
          New York, New York 10017-4608

          RE: Classification of a man's cold weather boot

          Dear Mr. Pellegrini

               This is in reference to your letter dated January 4, 1989,
          requesting the tariff classification of a man's cold weather boot
          under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA).  A sample from Korea was submitted.

          FACTS:

               The merchandise at issue is a man's cold weather boot.  The
          boot has a plastic unit molded bottom with a sidewall that
          extends to a point just above the insole.  The upper consists of
          a shaft made of plastic sheeting with textile piping at some of
          the seams, and a side zipper.  A mudguard that is made of a vinyl
          material embossed to resemble grain leather encircles the boot.
          The top of the mudguard is attached to the bottom of the upper
          shaft and the bottom is attached to the sidewall.  The mudguard
          is much wider in the heel area.  The boot is lined with a
          synthetic fleece.

          ISSUE:

               Whether the boot at issue has a foxing-like band which would
          preclude its classification under subheading 6402.91.40, HTSUSA.

          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 accessories and















                                         -2-


          reinforcements) 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.

               The footwear at issue appears to fit into this subheading,
          the only question being whether the sidewall is considered to be
          a foxing-like band.  The function of a foxing-like band is to
          reinforce or supplement the juncture between the sole and upper
          of footwear.  The characteristics of a foxing-like band are
          defined in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229
          (1983).  In this decision it is stated that 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, measured on a vertical plane.  If this vertical
          overlap is less than 1/4 inch, such footwear is presumed not to
          have a foxing-like band.

               The upper of the boot at issue does not overlap the outsole.
          The upper meets the outsole at the toe area of the boot but does
          not overlap.  Around the rest of the boot there is a wide gap
          between the upper and the outsole that is filled in by the mud
          flap.

          HOLDING:

               The boot at issue is classifiable under subheading
          6402.91.4015, HTSUSA, as 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 accessories and reinforcements) 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




















                                         -3-


          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, for men.  The rate of
          duty is 6 percent ad valorem.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division