HQ 951199: Boots; GRI 1; external surface area; foxing-like band; T.D. 83-116

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 951199 

                         April 22, 1992

CLA-2 CO:R:C:M 951199 KCC

CATEGORY:  Classification

TARIFF NO.:  6402.91.40; 6402.91.50

Ms. Dorothy Trombley
F.W. Myers & Co., Inc.
33 West Service, P.O. Box 188
Champlain, New York  12919

RE:  Boots; GRI 1; external surface area; foxing-like band; T.D.
     83-116

Dear Ms. Trombley:

     This is in response to your letter dated December 20, 1991,
on behalf of Radius Footwear Inc., requesting the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), country of origin, and marking requirements of
three styles of boots from Canada.  Your samples and letter were
forwarded to this office for a response.  Your request for the
country of origin and marking requirements will be answered by
the Value and Marking Branch under separate cover.

FACTS:

     The articles under consideration are three styles of over-
the-ankle cold weather boots.  Each of the uppers is constructed
of either poly-urethane and/or poly vinyl chloride.  The outer
soles are manufactured using the injection molding process
whereby the uppers are simultaneously attached to the created
outer sole.  The boots are not considered to be "water-proof." 
Each boot contains a pile insulating liner.  Styles WW and SB are
lace-up boots and style RX is a slip-on boot with a strap hook-
and-loop closure.   

ISSUE:

     What is the proper tariff classification of styles WW, SB,
RX boots under the HTSUS?

LAW AND ANALYSIS:

     The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's).  GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...."

     Footwear is classified in Chapter 64, HTSUS, and
classification in this chapter is based upon the construction of
the outer soles and uppers.  In all three styles, 100 percent of
the external surface area of the upper is composed of plastic. 
The external surface area of the uppers are constructed of either
poly-urethane and/or poly vinyl chloride material.  The outer
soles of all three styles are constructed of either poly vinyl
chloride or thermal plastic rubber.  Although the three styles
are not considered to be "water-proof", with their pile insulated
liners they are designed to protect against cold or inclement
weather.

     We are of the opinion that style RX is classified under
subheading 6402.91.40, HTSUS, 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 (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...." 

     In deciding the classification of footwear in this tariff
provision, we must also determine whether the footwear has as one
of its constituent parts a "foxing-like band."  The
characteristics of a foxing-like band are set forth in Treasury
Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983):

     1.   The term "foxing-like" applies to that which has the
          same, or nearly the same appearance, qualities, or
          characteristics as the foxing appearing on the
          traditional sneaker or tennis shoe.
     2.   A foxing-like band need not be a separate component.
     3.   A foxing-like band may or may not secure the joint
          between the sole and the upper.
     4.   A foxing-like band must be applied or molded at the
          sole and must overlap the upper.
     5.   A foxing-like band must encircle or substantially
          encircle the entire shoe.
     6.   A foxing-like band may be attached by any means.
     7.   Unit molded footwear is considered to have a foxing-
          like band if 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.

     Based on the above criteria, style RX does not possess a
foxing-like band.  Even though the RX is designed to protect
against cold or inclement weather, because the upper is
constructed by sewing the parts together whereby a substantial
portion of the functional stitching is exposed, it is not
excluded from this tariff provision.  As style RX does not posses
a foxing-like band and is not excluded as a boot designed for
cold or inclement weather protection, but is an over-the-ankle
boot in which the outer soles and upper are constructed of
plastic, it is properly classified under subheading 6402.91.40,
HTSUS.

     However, styles SB and WW do possess foxing-like bands.  The
unit molded soles vertically overlap by a 1/4 inch or more of the
uppers after the attachment process.  Therefore, the
classification of styles SB and WW under subheading 6402.91.40,
HTSUS, is precluded.  

     Like style RX, styles SB and WW are over-the-ankle boots
designed for cold or inclement weather in which the outer soles
and uppers are constructed of plastic.  Therefore, style SB and
WW are classified under subheading 6402.91.50, HTSUS, which
provides for "Other footwear with outer soles and uppers of
rubber or plastics...Other footwear...Covering the
ankle...Footwear 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...."

HOLDING:

     Style RX is classified under subheading 6402.91.40, HTSUS,
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 (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....", which is dutiable at
the rate of 6 percent ad valorem.

     Styles SB and WW are classified under subheading 6402.91.50,
HTSUS, which provides for "Other footwear with outer soles and
uppers of rubber or plastics...Other footwear...Covering the
ankle...Footwear 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....", which is dutiable at the rate
of 37.5 percent ad valorem.  

      It is claimed that styles RX, SB and WW boots are made in
Canada.  Goods originating in the territory of Canada, within the
meaning of General Note 3(c)vii)(B), HTSUS, are eligible for
treatment under the United States-Canada Free Trade Agreement
(CFTA).  The information submitted is insufficient to determine
whether the footwear is eligible for preferential tariff
treatment under the CFTA.  However, if eligible for special
treatment under the CFTA, merchandise classifiable within
subheading 6402.91.40, HTSUS, is currently dutiable at the
Special Column 1 rate of 3.6 percent ad valorem, and merchandise
classifiable within subheading 6402.91.50, HTSUS, is currently
dutiable at the Special Column 1 rate of 22.5 percent ad valorem.



                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division