HQ 083717: Classification of 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 083717

                                     May 1, 1989


          CLA-2:CO:R:C:G  083717  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.4045

          Ms. Tinka G. Andrade
          Meldisco
          933 Macarthur Boulevard
          Mahwah, New Jersey 07430

          RE: Classification of boots

          Dear Ms. Andrade:

                This is in reference to your letter dated January 23, 1989,
          requesting the tariff classification of boots under the
          Harmonized Tariff Schedule of the United States Annotated
          (HTSUSA).

          FACTS:

                The merchandise at issue is "moon boots" from Korea and
          Taiwan.  The boots have a unit molded rubber cup sole with
          sidewalls approximately 1 inch high.  The uppers are made of
          plastic and have functional stitching on the outer surface.  The
          sidewall is approximately 3 cm high when measured from the top of
          the outsole to the top of the sidewall.  The boots have a gap of
          approximately 1/2 inch between the upper and the outsole.

                Although the inquirer calls the boots at issue moon boots
          the boot bottom here is very different from those of the original
          moon boots which were the subject of T.D. 81-79, 15 Cust. Bull.
          191 (1981).  In T.D. 81-79, the sidewalls of the molded bottoms
          were 4 inches high whereas the sidewalls of the instant samples
          are approximately 1 inch high.  Since these sidewalls are so much
          lower, they differ greatly from the original moon boot bottom
          design and more closely resemble a traditional sneaker or boot
          bottom with a vulcanized foxing tape.

          ISSUE:

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















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          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
          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 is 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).  This decision 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.  There is a gap of 1/2 inch between the upper and the
          outsole.  For this reason the sidewall cannot be considered a
          foxing-like band.

          HOLDING:

                The footwear 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
















                                        - 3 -


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

                                       Sincerely,



                                       John Durant, Director
                                       Commercial Rulings Division