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HQ 086213


February 23, 1990

CLA-2:CO:R:C:G 086213 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.5060

Dick McAuliffe
New World, Inc.
800 West Cummings Park
Woburn, MA 01801

RE: Rubber boot

Dear Mr. McAuliffe:

This is in reference to your letter dated December 29, 1989, requesting the tariff classification of a winter boot under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample produced in Korea was submitted.

FACTS:

The merchandise at issue is a woman's insulated winter rubber boot that is approximately 7 inches tall. It has a polyurethane upper with vinyl overlays and two textile overlays. The upper is functionally stitched to a unit molded rubber sole. There is a rubber sidewall around the shoe which overlaps the upper by more than 1/4 inch. The boot has a honeycomb sole.

ISSUE:

What is the classification of the boot at issue?

LAW AND ANALYSIS:

The importer claims that the boot at issue should be classified under subheading 6402.91.40, HTSUSA, which 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 is rubber or plastics, except footwear having a foxing-like band applied or molded at the sole and overlapping the upper, and 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 at a duty rate of 6 percent.

No measurement of the textile overlays was provided; however, the overlays appear make up close to 10 percent of the external surface area. Because we can classify this boot based on other factors we will not require this information to be furnished.

The boot at issue does not have a foxing-like band; however, it is designed to be worn over or in lieu of other footwear as protection because it has an insulating liner. Therefore, in order to be classified under subheading 6402.91.40, HTSUSA, the boot must be entirely of non-molded constructed at a point 3 cm above the top of the outer sole. This boot does not meet the 3 cm exception. The sidewall of the unit molded sole of the shoe at issue measures more than 3 cm high from the top of the outer sole.

HRL 081977, dated September 22, 1988, dealt with the issue of the measurement of 3 cm from the top of the outer sole. This ruling determined that the top of the outer sole in boots with "cascade bottoms", as well as boots with honeycomb soles are measured from the bottom of the holes. This ruling stated that in this kind of sole, the thickness of the rubber in the lower part of the sole between the bottom of the holes and the ground remains consistent throughout the shoe. Therefore, height of the sidewall must be measured from the bottom of the holes since they are of a constant height from the bottom of the shoe.

The boot at issue does not meet this 3 cm exception, and therefore, cannot be classified under subheading 6402.91.40, HTSUSA.

HOLDING:

The boots at issue are classifiable under subheading 6402.91.5060, HTSUSA, which provides for other footwear with outer 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 or chemicals or cold or inclement weather, for women. The rate of duty is 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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