HQ 951573: Reconsideration of NYRL 872065; Waterproof footwear; Footwear, waterproof; Stitching, functional; NYRL 872065 affirmed

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 951573
                           June 15 1992

CLA-2  CO:R:C:M  951573 DFC

CATEGORY:  Classification

TARIFF NO.: 6402.99.20

Ms. Holly Ann Jacobsen
Import Specialist
Eddie Bauer Co.
15010 N.E. 36th Street
Redmond Washington  98052

RE:  Reconsideration of NYRL 872065;  Waterproof footwear;
     Footwear, waterproof;  Stitching, functional;  NYRL 872065
     affirmed

Dear Ms. Jacobsen:

     In a recent letter you requested that this office reconsider
the result reached in New York Ruling Letter (NYRL) dated March
19, 1992, relating to the tariff classification of certain
footwear produced in Korea.

FACTS:

     The shoe involved in NYRL 872065, designated as style T774, 
is a women's duck bottom, slip-on with a rubber sole and a
rubber, suede, and textile upper.  The shoe has a narrow textile
border around the topline, a suede collar and flap, and a non-
functional lace trim.

     In NYRL 872065, you were advised that this shoe is
classifiable under subheading 6402.99.20, Harmonized Tariff
Schedule of the United States (HTSUS), as other footwear with
outer soles and uppers of rubber or plastics, not covering the
ankle, having uppers of which not over 90 percent of the external
surface area is rubber or plastics, 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
applicable rate of duty for this provision is 37.5% ad valorem.










                               -2-
     
     You maintain that this shoe is properly classifiable
under subheading 6401.99.30, HTSUS, 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, other, 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, and designed for use without
closures.  The applicable rate of duty for this provision is 25%
ad valorem.

ISSUE:

     Does the construction of the shoe's upper preclude its
classification as waterproof footwear under heading 6401, HTSUS?

LAW AND ANALYSIS:

     You assert that the shoe is waterproof and because the upper
is attached to the sole by a lamination (actually vulcanizing)
process, and not by stitching, riveting, nailing, screwing or
plugging, it qualifies as waterproof footwear under heading 6401,
HTSUS.

     We agree that the shoe is waterproof and that the upper is
fixed to the sole by a laminating (vulcanizing) process. 
However, this is only part of the requirement of the heading.  In
addition to the method of attachment of the upper to the sole, we
must also consider the method of assembly of the upper itself. 
Inasmuch as the leather cuff and textile strip [collar] are both
stitched to the lower part of the upper, what we have here is an
upper that is assembled by stitching.  This construction
precludes the shoe from classification under heading 6401, HTSUS,
as waterproof footwear. 

HOLDING:

     Classification of the shoe under heading 6401, HTSUS, as
waterproof footwear is precluded since the collar of the shoe
consisting of a leather cuff and textile strip which is
considered part of the upper is assembled to the lower part of
the upper by stitching.










                               -3-


     The sample shoe is dutiable at the rate of 37.5% ad valorem
under subheading 6402.99.20, HTSUS.

     NYRL 872065 is affirmed.

                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division


6cc AD NY seaport
1cc Eric Francke NY Seaport
1cc John Durant