HQ 084361: Tariff classification of rubber boot bottoms manufactured in Canada.

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 084361

                                    June 21, 1989

          CLA-2  CO:R:C:G  084361 DFC

          CATEGORY: Classification

          TARIFF NO.: 6401.92.9000; 6401.99.3000

          Mr. Charles Di Prinzio
          A.N. Deringer, Inc.
          30 West Service Road
          Champlain, New York 1219-9703

          RE: Tariff classification of rubber boot bottoms manufactured
              in Canada.

          Dear Mr. Di Prinzio:

                Your letter dated March 29, 1989, addressed to our
          Champlain office concerning the tariff classification of rubber
          boot bottoms, has been referred to this office for a direct reply
          to you.  Samples were submitted for examination.

          FACTS:

                The merchandise to be imported consists of three different
          rubber/plastic molded boot bottoms.  These bottoms will be
          assembled in the United States to four (and presumably more)
          different types of uppers.

                The bottoms labelled 7700 and 7800 are over-the ankle and
          have lower portions which vaguely resemble the lower portions of
          the original moon boot bottoms.  Bottom 7700 is about 3-3/4
          inches high. Bottom 7800 is about 7-1/4 inches high.

                Bottom 6700/6300 is not of the over-the-ankle type. It
          resembles the "Rubber Ducky" bottom.  Bottom 6700 will have a PU
          upper stitched to it in the United States which makes it about
          6-1/2 inches high.  Bottom 6300 will have a leather and textile
          upper which will overlay the bottom but not increase its height.

                You maintain that these bottoms are parts of footwear for
          tariff purposes.


















                                         -2-

          ISSUE:

                Whether the bottoms in their condition as imported exhibit
          the essential character of footwear.

          LAW AND ANALYSIS:

                In applying the Harmonized Tariff Schedule of the United
          States Annotated (HTSUSA), the Customs Service must follow the
          terms of the statute. Classification of goods under the HTSUSA is
          governed by the General Rules of Interpretation (GRI's). GRI 1
          provides that "classification shall be determined according to
          the terms of the headings and any relative section or chapter
          notes, and provided such headings or notes do not otherwise
          require, according to [the remaining GRI's taken in order]."In
          other words classification is governed first by the terms of the
          headings of the tariff and relative section or chapter notes.

                General Interpretative Rule 10(h), Tariff Schedules of the
          United States, provides as follows:

                      unless the context requires otherwise, a tariff
                      description for an article covers such article
                      whether assembled or unassembled, and whether
                      finished or unfinished.

                GRI 2(a), HTSUSA, provides as follows:

                      Any reference in a heading to an article shall be
                      taken to include a reference to that article
                      incomplete or unfinished, provided that, as
                      presented, the incomplete or unfinished article has
                      the essential character of the complete or finished
                      article. It shall also include a reference to that
                      article complete or finished (or falling to be
                      classified as complete or finished by virtue of this
                      rule) entered unassembled or disassembled.

                Both Rule 10(h) and GRI 2(a) are prospective in nature.
          That is in order to classify an unfinished  article one must know
          what the article will be in its contemplated finished condition.
          In this situation a prospective application of GRI 2(a) to the
          instant bottoms is modified by the language of Chapter 64,
          HTSUSA, and the Explanatory Notes thereto.

















                                         -3-


                For example, heading 6405, HTSUSA, provides for other
          footwear. The Explanatory Note for this heading reads in
          pertinent part as follows:

                      Subject to Notes 1 and 4 to this Chapter, this
                      heading covers all footwear having outer soles and
                      uppers of a material or combination of materials not
                      referred to in the preceding heading of this Chapter.

                      *            *            *            *

                      This heading excludes assemblies of parts (e.g.,
                      uppers whether or not affixed to an inner sole) not
                      yet constituting nor having the essential character
                      of footwear as described in heading 64.01 to 64.05
                      (heading 64.06).

                Also, heading 6406, HTSUSA, provides for parts of footwear;
          etc. Explanatory Note (A) (7) to this heading reads as follows:

                This heading covers:

            (A) The various component parts of footwear; these parts may be
                of any material except asbestos.

                (7) Assemblies of parts (e.g., uppers whether or not
                    affixed to an inner sole) not yet constituting
                    nor having the essential character of footwear as
                    described in headings 64.01 to 64.05.

                Prior to the advent of the HTSUSA, it was our position that
          uppers with closed bottoms and having no outer soles were
          unfinished footwear for tariff purposes. See Uniroyal v. United
          States, 3 CIT 220 (1982). Under the HTSUSA the same articles are
          considered to be parts of footwear because they do not have the
          essential character of footwear i.e., having both soles and
          uppers provided for in headings 6401 through 6405, HTSUSA. We
          interpret this treatment of uppers affixed to inner soles as
          effectively eliminating for the purposes of Chapter 64
          consideration of articles such as the bottoms in issue in their
          contemplated finished condition. In other words, condition as
          imported will govern classification of the instant merchandise.

                In view of the foregoing, we cannot take into account any
          additions to complete the bottoms. In this instance we have
          bottoms with substantial upper portions. These bottoms in their
          condition as imported have the essential character of footwear.
          Specifically, they look and function much like rubber galoshes
          and, although not complete, provide a total covering for the
          foot.











                                         -4-

                It is to be noted that the bottoms labelled 6700 and 6300
          are the same and as imported do not have a closure. Accordingly,
          these bottoms are classifiable under subheading 6401.99.3000,
          HTSUSA, as waterproof footwear with outer soles and uppers of
          rubber or plastics, the uppers of which are neither fixed to the
          sole not assembled by stitching, riveting, nailing, screwing,
          plugging or similar processes, other footwear, other, designed
          for use without closures.

                The bottoms labelled 7700 and 7800 are classifiable under
          subheading 6401.92.9000, HTSUSA, as waterproof footwear with
          outer soles and uppers 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, other
          footwear, covering the ankle but not covering the knee, other

          HOLDING:

                The bottoms labelled 7700 and 7800 are classifiable under
          subheading 6401.92.9000, HTSUSA, with duty at the general rate of
          37.5 percent ad valorem.

                Bottom 6700/6300 is classifiable under subheading
          6401.99.3000, HTSUSA, with duty at the general rate of 25 percent
          ad valorem.

                Merchandise which qualifies as "goods originating in the
          territory of Canada" as that term is defined in General Note 3(c)
          (vii) (B), HTSUSA, is eligible for reduced rates of duty upon
          importation into the United States. Consequently, bottom
          6700/6300 may be eligible for a 22.5 percent ad valorem rate of
          duty while bottoms 7700 and 7800 may be eligible for a 33.7
          percent ad valorem rate of duty.

                                    Sincerely,




                                    John Durant, Director
                                    Commercial Rulings Division




















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