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HQ 951444

June 4, 1992

CLA-2 CO:R:C:M 951444 DWS

CATEGORY: CLASSIFICATION

TARIFF NO: 6402.91.40

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Il 60607

RE: Protest No. 3901-92-100104; Footwear; Boots; Cuffs; HQ 951649; 6402.91.50

Dear Sir:

This is our response on Application for Further Review of Protest No. 3901-92-100104, dated January 13, 1992, concerning your action in classifying and assessing duty on boots under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of boots, model numbers 59511, 59512, 59513. Both the sole and the upper of the boot are made of polyurethane. The upper consists of parts sewn together, much of the stitching exposed on the upper's external surface. The inside of the boot is lined with cushioned fleece socks. A velcro fastener tightens the top portion of the boot. The shaft of the boot's upper is 8 and 1/2 inches long and the heel measures 1 inch in length. The country of origin label is sewn into the inside back seam within an inch from the top of the boot. The shaft is elasticized within an inch and 1/2 from the top of the boot. Based upon the construction of the boot, it is designed to be protective from cold or inclement weather.

ISSUE:

Whether the top portion of the boot is cuffable, exposing part of the cushioned fleece sock lining and leaving the external surface area of the upper less than 90 percent plastic?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The merchandise was entered under subheading 6402.91.40, HTSUS, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [h]aving uppers of which over 90 percent of the external surface area is rubber or plastics . . . . 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."

However, the merchandise was liquidated under subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [o]ther: [f]ootwear 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."

These identical boots were ruled upon in HQ 951649, dated April 28, 1992. It was held that "[t]he boots's upper cannot be cuffed, thereby exposing the fleece lining and reducing the percentage of surface area of the polyurethane. It is our view that cuffing the boot would cover the velcro strap and conceal the elasticized stitching, two obvious design features which make the boot attractive."

It was has also held in HQ 951649 that pre-classification ruling letter 865662 (PC 865662), dated September 10, 1991, was modified to reflect the correct classification of the subject boots. In PC 865662, the boots were held to be classifiable under subheading 6402.91.50, HTSUS.

Therefore, under HQ 951649, the subject boots are classifiable under subheading 6402.91.40, HTSUS.

HOLDING:

The subject boots are classifiable under subheading 6402.91.40, HTSUS. The protest should be granted. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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