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HQ 951199


April 22, 1992

CLA-2 CO:R:C:M 951199 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40; 6402.91.50

Ms. Dorothy Trombley
F.W. Myers & Co., Inc.
33 West Service, P.O. Box 188
Champlain, New York 12919

RE: Boots; GRI 1; external surface area; foxing-like band; T.D. 83-116

Dear Ms. Trombley:

This is in response to your letter dated December 20, 1991, on behalf of Radius Footwear Inc., requesting the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), country of origin, and marking requirements of three styles of boots from Canada. Your samples and letter were forwarded to this office for a response. Your request for the country of origin and marking requirements will be answered by the Value and Marking Branch under separate cover.

FACTS:

The articles under consideration are three styles of over- the-ankle cold weather boots. Each of the uppers is constructed of either poly-urethane and/or poly vinyl chloride. The outer soles are manufactured using the injection molding process whereby the uppers are simultaneously attached to the created outer sole. The boots are not considered to be "water-proof." Each boot contains a pile insulating liner. Styles WW and SB are lace-up boots and style RX is a slip-on boot with a strap hook- and-loop closure.

ISSUE:

What is the proper tariff classification of styles WW, SB, RX boots under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Footwear is classified in Chapter 64, HTSUS, and classification in this chapter is based upon the construction of the outer soles and uppers. In all three styles, 100 percent of the external surface area of the upper is composed of plastic. The external surface area of the uppers are constructed of either poly-urethane and/or poly vinyl chloride material. The outer soles of all three styles are constructed of either poly vinyl chloride or thermal plastic rubber. Although the three styles are not considered to be "water-proof", with their pile insulated liners they are designed to protect against cold or inclement weather.

We are of the opinion that style RX is classified under subheading 6402.91.40, HTSUS, 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...."

In deciding the classification of footwear in this tariff provision, we must also determine whether the footwear has as one of its constituent parts a "foxing-like band." The characteristics of a foxing-like band are set forth in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983):

1. The term "foxing-like" applies to that which has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.
2. A foxing-like band need not be a separate component. 3. A foxing-like band may or may not secure the joint between the sole and the upper.
4. A foxing-like band must be applied or molded at the sole and must overlap the upper.
5. A foxing-like band must encircle or substantially encircle the entire shoe.
6. A foxing-like band may be attached by any means. 7. Unit molded footwear is considered to have a foxing- like band if 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.

Based on the above criteria, style RX does not possess a foxing-like band. Even though the RX is designed to protect against cold or inclement weather, because the upper is constructed by sewing the parts together whereby a substantial portion of the functional stitching is exposed, it is not excluded from this tariff provision. As style RX does not posses a foxing-like band and is not excluded as a boot designed for cold or inclement weather protection, but is an over-the-ankle boot in which the outer soles and upper are constructed of plastic, it is properly classified under subheading 6402.91.40, HTSUS.

However, styles SB and WW do possess foxing-like bands. The unit molded soles vertically overlap by a 1/4 inch or more of the uppers after the attachment process. Therefore, the classification of styles SB and WW under subheading 6402.91.40, HTSUS, is precluded.

Like style RX, styles SB and WW are over-the-ankle boots designed for cold or inclement weather in which the outer soles and uppers are constructed of plastic. Therefore, style SB and WW are classified under subheading 6402.91.50, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear...Covering the ankle...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...."

HOLDING:

Style RX is classified under subheading 6402.91.40, HTSUS, 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....", which is dutiable at the rate of 6 percent ad valorem.

Styles SB and WW are classified under subheading 6402.91.50, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear...Covering the ankle...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....", which is dutiable at the rate of 37.5 percent ad valorem.

It is claimed that styles RX, SB and WW boots are made in Canada. Goods originating in the territory of Canada, within the meaning of General Note 3(c)vii)(B), HTSUS, are eligible for treatment under the United States-Canada Free Trade Agreement (CFTA). The information submitted is insufficient to determine whether the footwear is eligible for preferential tariff treatment under the CFTA. However, if eligible for special treatment under the CFTA, merchandise classifiable within subheading 6402.91.40, HTSUS, is currently dutiable at the Special Column 1 rate of 3.6 percent ad valorem, and merchandise classifiable within subheading 6402.91.50, HTSUS, is currently dutiable at the Special Column 1 rate of 22.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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