HQ 083861: Classification of a rainboot

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 083861

                                    June 06, 1989



          CLA-2:CO:R:C:G  083861  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.50

          Mr. C. Hartill
          Superb Custom Brokers, Inc.
          149-10 183rd Street
          Jamaica, New York 11413

          RE: Classification of a rainboot

          Dear Mr. Hartill:

               This is in reference to your letter dated February 6, 1989,
          requesting the classification of a woman's rainboot under the
          Harmonized Tariff Schedule of the United States Annotated
          (HTSUSA).  A sample produced in Italy was submitted.

          FACTS:

               The merchandise at issue is a women's rainboot.  The sample
          submitted is identified as style "Colorado," and is labelled
          "Evan-Picone."  The boot is 16 inches high with a plastic upper
          and a cemented-on plastic bottom.  The upper has a stitched seam
          which runs the length of the back of the shaft that is reinforced
          on the inside by a glued and stitched-on textile tape.  The
          stitched seams that hold the stiffer plastic pieces of the foot
          portion of the upper to each other and to the shaft are also
          reinforced by cementing together the edges where they overlap by
          approximately 1/2 inch.

          ISSUE:

               Whether the woman's rainboot is classifiable under heading
          6401, HTSUSA, as waterproof footwear, or under 6402, HTSUSA, as
          other footwear with outer soles and uppers of rubber or plastics.
















                                         -2-

          LAW AND ANALYSIS:

               Heading 6401, HTSUSA, provides for waterproof footwear with
          outer soles of rubber or plastics, the uppers of which are
          neither fixed to the sole nor assembled by stitching, riveting,
          nailing, screwing, plugging or similar processes.  The footwear
          at issue is not classifiable under this provision because the
          various parts of the upper are stitched together.

               6402.91.40, HTSUSA, provides for other footwear with outer
          soles and uppers of rubber or plastics, covering the ankle,
          having uppers of which over 90 percent of the external surface
          (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.

               Due to the exception to exclusionary clause 2, the
          merchandise at issue cannot be classified under this subheading
          because it is not entirely of non-molded construction.  The
          cementing of the stitched seams and the backing of some of the
          seams with waterproof tape constitutes a method of construction
          that is not entirely of non-molded construction formed by sewing
          the parts together.

          HOLDING:

               The merchandise at issue is classifiable under subheading
          6402.91.50, HTSUSA, as footwear, in which the upper's and outer
          sole's external surfaces are predominately rubber and/or
          plastics, which is other than sports footwear, which does not
          have a protective metal toe cap, which covers the wearer's ankle,
          which is designed to be a protection against water, oil or cold
          or inclement weather, which has an upper which is assembled by
          stitching, in which the upper's external surface is over 90




















                                         -3-

          percent rubber and/or plastics after every accessory and
          reinforcement present is included as part of the upper's external
          surface, and which has an upper that is not entirely of stitched
          construction down to 3 cm or less from the top of the outer sole.
          The rate of duty is 37.5 percent ad valorem.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division