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HQ 083521


May 2, 1989

CLA-2:CO:R:C:G 083521 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.4015

Mr. John B. Pellegrini
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Classification of a man's cold weather boot

Dear Mr. Pellegrini

This is in reference to your letter dated January 4, 1989, requesting the tariff classification of a man's cold weather boot under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample from Korea was submitted.

FACTS:

The merchandise at issue is a man's cold weather boot. The boot has a plastic unit molded bottom with a sidewall that extends to a point just above the insole. The upper consists of a shaft made of plastic sheeting with textile piping at some of the seams, and a side zipper. A mudguard that is made of a vinyl material embossed to resemble grain leather encircles the boot. The top of the mudguard is attached to the bottom of the upper shaft and the bottom is attached to the sidewall. The mudguard is much wider in the heel area. The boot is lined with a synthetic fleece.

ISSUE:

Whether the boot at issue has a foxing-like band which would preclude its classification under subheading 6402.91.40, HTSUSA.

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 accessories and
reinforcements) 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.

The footwear at issue appears to fit into this subheading, the only question being whether the sidewall is considered to be a foxing-like band. The function of a foxing-like band is to reinforce or supplement the juncture between the sole and upper of footwear. The characteristics of a foxing-like band are defined in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983). In this decision it is stated that unit molded footwear is considered to have a foxing-like band if a 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.

The upper of the boot at issue does not overlap the outsole. The upper meets the outsole at the toe area of the boot but does not overlap. Around the rest of the boot there is a wide gap between the upper and the outsole that is filled in by the mud flap.

HOLDING:

The boot at issue is classifiable under subheading 6402.91.4015, HTSUSA, as 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 accessories and reinforcements) 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, for men. The rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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