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HQ 088960


June 21, 1991

CLA-2 CO:R:C:M 088960 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.5090

Robert D. Stang, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman Counselors At Law
12 East 49th Street
New York, NY 10017

RE: Rainboot, slip-on, child's; Footwear, plastic, cuffed, girl's

Dear Mr. Stang:

In a letter dated February 19, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a child's slip-on rainboot manufactured in China. A sample was submitted for examination.

FACTS:

The sample, Style Y61040, is a child's slip-on rainboot with a stitched plastic upper and a unit molded plastic sole. The shaft of the upper has a cold weather liner consisting of an interior fiber wadding and an exterior knit fabric. The knit fabric is made from two pieces which are sewn together; a lower piece which is black, and a 2-3/4 inch high upper piece which is black with a five-color geometric jacquard pattern. The top one inch of the shaft is cuffed down and held in the down position by tacking stitches in the front and back. There is a marking label stitched into the inside back of the shaft about one inch below the top. The amount of textile liner showing as external surface area of this boot in the condition in which it was presented is assumed to be less than 10 percent of the total.

You maintain that this boot is classifiable under subheading 6402.91.40, 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 any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics.

ISSUE:

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

LAW AND ANALYSIS:

You assert that your proposed classification is based in part on the fact that as imported the boot has a stitched-down cuff which demonstrates that the boot is not designed to be further cuffed by the ultimate purchaser.

You argue that a further cuffing of the boot would expose the label stitched onto the upper approximately one-half inch from the top. Certainly, consumers would not wear the boot with the label exposed. Removal of the label which is firmly sewn into the seam of the boot's lining would in all likelihood ruin the lining or leave an unsightly stubble on the boot's exterior.

CUSTOMS POSITION

The claim that because the boot will be imported with a stitched-down cuff it will be worn with the cuff in that position is wrong for two reasons. First, the tacking stitches can be easily removed permitting the boot to be cuffed lower as well as permitting it to be worn uncuffed. Second, and most importantly, the top knit liner piece contains an attractive, recognizable, geometric pattern which can be seen only when the boot is cuffed close to where that top piece begins. When cuffed as presented, one sees only small random portions of three out of the five colors of the geometric patterns. Furthermore, when cuffed as presented, a 1/4 inch strip of the plastic material which the cuff is supposed to hide, shows awkwardly below the cuff. However, when fully cuffed, which is the way Customs believes the boot was designed to be worn, the 1/4 inch strip is completely hidden.

The claim that the marking label is so firmly attached to the lining seam that its removal will ruin the lining or leave an unsightly stubble is unfounded. You have not submitted proof that the presence of a label in this instance would deter consumers from buying the boot.

In view of the foregoing, it is our opinion that the boot is designed to be worn cuffed down to show the full geometric pattern and the external surface area of the upper is more than 10 percent textile.

HOLDING:

The child's slip-on rainboot has an upper the external surface area of which is not over 90 percent plastic which precludes its classification under subheading 6402.91.40, HTSUSA. Consequently, it is considered protective footwear classifiable under subheading 6402.91.50, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, 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 applicable rate of duty is 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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