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HQ 083604


May 2, 1989

CLA-2:CO:R:C:G 083604 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.4045

Mr. Keith Burdette
K.C. Burdette Company, Inc.
45 John Street
Suite 801
New York, New York 10038

RE: Classification of boots

Dear Mr. Burdette:

This is in reference to your letter dated January 13, 1989, requesting the tariff classification of boots under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples from Korea were submitted.

FACTS:

The merchandise at issue is "moon boots". The boots have a unit molded rubber bottom with a honeycomb sole, and sidewalls of approximately 1 inch. The uppers are made of polyethelene and have functional stitching on the outer surface. There is less than 3 cm from the bottom of the inside of the outsole to the top of the sidewall of the outsole. The boots have a gap of approximately 1/8 inch between the upper and the outsole. The boots have removeable liners.

Although the inquirer calls the boots at issue moon boots the boot bottom here is very different from those of the original moon boots which were the subject of T.D. 81-79, 15 Cust. Bull. 191 (1981). In T.D. 81-79, the sidewalls of the molded bottoms were 4 inches high whereas the sidewalls of the instant samples are approximately 1 inch high. Since these sidewalls are so much lower, they differ greatly from the original moon boot bottom design and more closely resemble a traditional sneaker or boot bottom with a vulcanized foxing tape.

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 is 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). This decision 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. There is a gap of 1/8 inch between the upper and the outsole. For this reason the sidewall cannot be considered a foxing-like band.

HOLDING:

The footwear 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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