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HQ 081977


September 22, 1988

CLA-2 CO:R:C:G 081977 SR 827671

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

Bernard S. Feuer
Hanbee America, Inc.
175 Anderson Avenue
Moonachie, New Jersey 07074

RE: Classification of boots with a "cascade bottom"

Dear Mr. Feuer:

This is in reference to your letter dated January 12, 1988, requesting the tariff classification of boots with a "cascade bottom" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of a boot sole was submitted for examination.

FACTS:

The merchandise in question is a boot with a "cascade bottom." The "cascade bottom" is similar in design to the honeycomb sole, however, it has circular holes rather than square holes and is more substantial in weight and volume. The sole has 23 holes which are one centimeter in diameter and average approximately 1 centimeter deep varying with the thickness of the sole. If the measurement to the top edge of the sidewall is taken from the surface at the top of the holes then the height of the sidewall is under 3 centimeters. If the measurement is taken from the bottom of the cylindrical holes then the height is over 3 centimeters.

ISSUE:

Whether the "top of the outer sole" is measured from a point on the surface at the top of the holes and therefore within the 3 centimeters exception of subheading 6402.91.40, HTSUSA. 2

LAW AND ANALYSIS:

Subheading 6402.91.40, HTSUSA, 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.

Headquarters Ruling Letter (HRL) 081596, dated January 27, 1988, dealt with the same issue for boots with honeycomb soles. Honeycomb soles are similar to the cascade bottom except they have large square holes rather than small round holes. This ruling determined that the "top of the outer sole" is measured from the flat surface one touches when one's finger is put through the honeycomb.

The boot soles at issue are molded soles made of rubber and they differ from the leather "flat top" soles in most shoes in that their height and thickness vary throughout the sole. The holes are similar to the holes in the honeycomb sole in that they get progressively deeper as the thickness of the rubber increases. The thickness of the rubber in the lower part of the sole between the bottom of the holes and the ground remains consistant throughout the shoe. The height of the sidewall in the cascade bottom, as in the honeycomb sole, must be measured from the bottom of the holes since they are of a constant height from the bottom of the shoe. When measured from the bottom of the holes the height of the sidewall exceeds 3 centimeters.

HOLDING:

"Cascade bottoms" are boot soles similar in construction to honeycomb soles and are subject to the same measurement standard for determining sidewall height. Because the molded sidewall of the sole in question is more than 3 centimeters above the top of the outer sole it is precluded from classification under subheading 6402.91.40, HTSUSA. It is our position that boots using this sole should be classified under subheading 6402.91.50,

HTSUSA, as other footwear with soles and uppers of rubber or plastics, other footwear, covering the ankle, other footwear designed to be worn over, or in lieu of other footwear as a protection against water, oil, grease, chemicals, cold, or inclement weather. The rate of duty for this provision is 37.5 percent ad valorem.

This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes before enactment this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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