HQ 951444: Protest No. 3901-92-100104; Footwear; Boots; Cuffs; HQ 951649; 6402.91.50

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 951444
                          June 4, 1992


CLA-2 CO:R:C:M 951444 DWS

CATEGORY: Classification

TARIFF NO: 6402.91.40

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Il 60607

RE: Protest No. 3901-92-100104; Footwear; Boots; Cuffs;
    HQ 951649; 6402.91.50

Dear Sir:

     This is our response on Application for Further Review of
Protest No. 3901-92-100104, dated January 13, 1992, concerning
your action in classifying and assessing duty on boots under the
Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

     The merchandise consists of boots, model numbers 59511,
59512, 59513.  Both the sole and the upper of the boot are made
of polyurethane.  The upper consists of parts sewn together, much
of the stitching exposed on the upper's external surface.  The
inside of the boot is lined with cushioned fleece socks.  A
velcro fastener tightens the top portion of the boot.  The shaft
of the boot's upper is 8 and 1/2 inches long and the heel
measures 1 inch in length.  The country of origin label is sewn
into the inside back seam within an inch from the top of the
boot.  The shaft is elasticized within an inch and 1/2 from the
top of the boot.  Based upon the construction of the boot, it is
designed to be protective from cold or inclement weather.

ISSUE:

     Whether the top portion of the boot is cuffable, exposing
part of the cushioned fleece sock lining and leaving the external
surface area of the upper less than 90 percent plastic?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.     

     The merchandise was entered under subheading 6402.91.40,
HTSUS, which provides for: "[o]ther footwear with outer soles and
uppers of rubber or plastics: [o]ther footwear: [c]overing the
ankle: [h]aving uppers of which over 90 percent of the external
surface area is rubber or plastics . . . . 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."

     However, the merchandise was liquidated under subheading
6402.91.50, Harmonized Tariff Schedule of the United States
(HTSUS), which provides for: "[o]ther footwear with outer soles
and uppers of rubber or plastics: [o]ther footwear: [c]overing
the ankle: [o]ther: [f]ootwear 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."  

     These identical boots were ruled upon in HQ 951649, dated
April 28, 1992.  It was held that "[t]he boots's upper cannot be
cuffed, thereby exposing the fleece lining and reducing the
percentage of surface area of the polyurethane.  It is our view
that cuffing the boot would cover the velcro strap and conceal
the elasticized stitching, two obvious design features which make
the boot attractive."

     It was has also held in HQ 951649 that pre-classification
ruling letter 865662 (PC 865662), dated September 10, 1991, was
modified to reflect the correct classification of the subject
boots.  In PC 865662, the boots were held to be classifiable
under subheading 6402.91.50, HTSUS.

     Therefore, under HQ 951649, the subject boots are
classifiable under subheading 6402.91.40, HTSUS.

HOLDING:

     The subject boots are classifiable under subheading
6402.91.40, HTSUS.  The protest should be granted.  A copy of
this decision should be attached to the Customs Form 19 and
provided to the protestant as part of the notice of action on the
protest.

                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division