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HQ 088956


May 20, 1991

CLA-2 CO:R:C:M 088956 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Mr. Robert Stang
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, NY 10017

RE: Women's Fleece-Lined Plastic Boot

Dear Mr. Stang:

This is in response to your letter dated February 19, 1991, on behalf of E.S. Originals, requesting a tariff classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for women's fleece-lined plastic boots. A sample of the boot was submitted for our examination.

FACTS:

The merchandise involved is Style No. P13320, a women's calf-high snow boot with a fleece trim that measures approximately 9 inches with the shaft standing straight up. The shaft of the boot is lined with fleece. When the shaft of the boot is straight up, the external surface area of the boot's upper is over 90 percent rubber and/or plastic. In addition, the country of origin label is located on the inside of the shaft about a 1/2 inch from the top of the boot.

ISSUE:

Does the boot have an upper the external surface area of which is over 90 percent plastics.

LAW AND ANALYSIS:

Counsel for the importer argues that the instant boots are not intended to be cuffed and therefore, have uppers of which over 90 percent of the external surface area is rubber or plastics. Counsel argues that Headquarter's Ruling Letter (HRL) 075075, dated December 3, 1984, the construction of the boots and the placement of the label confirm that the boots were not designed to be cuffed. Therefore, the boots would be classifiable in 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 (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.

Ruling 075075 dealt with the classification of a women's plastic slip-on boot with a synthetic fur trim and a shaft made of black woven nylon. This ruling held that the boot was not designed to be cuffed because the lining material was the same throughout the entire length of the interior of the shaft, unlike most cuff boots which use a different lining for the cuff portion. In addition, when the top of the shaft was rolled over, it did not lie flat. Finally, the bifurcation ( a "v" cut at the back of the shaft) was for the purpose of enabling a woman to more easily insert the legs of her jeans within the boot and it caused the rolled over shaft to have a winged looked which was inconsistent with a cuff. As a result, the boot was classified as having an upper with an exterior surface area of over 90 percent rubber/plastics.

Two recent cases, HRL 088353 and HRL 088403, dealt with the issue of whether certain snow boots were designed to be cuffed or uncuffed. HRL 088353, dated March 12, 1991, dealt with the classification of a ladies' plastic boot called the "Fur Cuff Fold Down". This case held that the boot was designed to be cuffed and was classifiable in subheading 6402.91.50, 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. The ruling stated that the boot was designed to be worn cuffed for the following reasons:

(1) the country of origin label was easily removed and contained the statement "Fur Cuff Fold Down";

(2) the different and better looking material at the top of the shaft liner (fake fur v. fake pile);

(3) the cuff laid perfectly flat and there were no wings when folded down;

(4) the notch at the back of the upper made it easier to fold the cuff down;

(5) the label, if not removed, would be unpleasant against the leg.

HRL 088403, dated March 22, 1991, dealt with the classification of a women's calf-high snow boot that had a set of snap closures and a V cut at the top of the shaft. The country of origin label was located approximately 3-1/2 inches down from the top of the shaft. This ruling stated that the configuration of the boots in their cuffed condition could be considered permanent based on the presence of the snap closures at the top of the shaft. In addition, the uppers did lie flat since they were held in place by snap closures. Therefore, since the boot was designed to be cuffed, this ruling held that the boot's upper was not over 90 percent rubber/plastic and it was classifiable in subheading 6402.91.50, HTSUSA.

The instant boot is distinguishable from the boots in the above two rulings. Unlike the boot in HRL 088353, the instant boot does not have a different liner at the top of the shaft. The lining material is the same throughout. The cuff does not lie perfectly flat and there are wings when it is folded down. Moreover, unlike the boot in HRL 088403, the instant boot does not have snaps that would enable a cuff to be permanent and lie flat. In addition, the country of origin label is 1/2 inch away from the top of the shaft where it is easily seen if the top part is folded over. Though this boot does have some factors present in the other boots, for example, the label can be removed and the fleece lining is an attractive material, these factors are not by themselves sufficient to make this a boot designed to be worn cuffed. The instant boots are not designed to be cuffed and have uppers whose external surface areas are over 90 percent rubber/plastic.

HOLDING:

The instant boots are classifiable in subheading 6402.91.40, HTSUSA. The rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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