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HQ 956678




September 22 1994

CLA-2 CO:R:C:M 956678 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

Margaret R. Polito, Esq.
Neville, Peterson & Williams
Counsellors at Law
80 Broad Street
Suite 3400
New York, New York 10004

RE: Footwear; Welt, mock; Band, foxing-like; T.D. 83-116; DD 898255 affirmed; HRL's 069633,070506,072705; NYRL's 889317,889318,869746

Dear Ms. Polito;

In a letter dated June 30, 1994, on behalf of Miller's Harness Company, you asked us to reconsider DD 898255 dated June 10, 1994, issued to you by the District Director of Customs, Boston, Massachusetts, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of two boots which will be produced in Korea. Samples of styles 1585A and 1594A were submitted for examination.

FACTS:

Style 1585A is a lace-up (paddock) boot which measures approximately 7-1/2 inches in height. It has a functionally stitched plastic upper, a front lace closure, a unit-molded rubber outer sole, a 1/2 inch heel and a "Thinsulate" lining. The rubber molded outer sole has an imitation welt.

Style 1594A (children's) is a (riding) boot which measures approximately 16-1/2 inches in height. It has a functionally stitched plastic upper, a velcro closure, a unit-molded rubber outer sole, a 1/2 inch heel and a "Thinsulate" lining. The molded rubber outer sole has an imitation welt.

In DD 898255 dated June 10, 1994, the District Director of Customs, Boston, Massachusetts, ruled that both styles of boots are classifiable 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, 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, having a foxing like-band, 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 for this provision is 37.5% ad valorem.

You maintain that both styles of boots are classifiable under subheading 6402.91.40, HTSUS, as footwear other than protective footwear with duty at the rate of 6% ad valorem.

ISSUES:

Do the boots possess foxing-like bands which would preclude their classification under subheading 6402.91.40, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]."

After careful consideration of numerous comments submitted by footwear importers and the domestic shoe industry, by a document published as T.D. 83-116 in the Federal Register of May 23, 1983 (48 Fed. Reg 22904, 17 Cust. Bull. 229 (1983)), the Customs Service set forth:

(1) Customs position regarding the proper interpretation of the provisions in the Tariff Schedules of the United States (TSUS), pertaining to imported footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper, and (2) guidelines relating to the characteristics of foxing and a foxing-like band.

Even though the TSUS was superseded by the HTSUS, effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear.

T.D. 83-116 set forth guidelines relating to the characteristics of a foxing. Characteristic 7 which is relevant here, reads, as follows:

7. A foxing does not include components known by another name clearly recognized in the trade such as mock welts, toe bumpers, wedge wraps and platform wraps.

T.D. 83-116 also set forth guidelines relating to the characteristics of a foxing-like band. Characteristic 7 which is also relevant here, reads, as follows:

7. Unit molded footwear is considered to have a foxing- like band if a 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.

You maintain that because the boots in issue have mock welts, they do not possess foxing-like bands following T.D. 83- 116. Further, Customs has consistently ruled that footwear with a mock welt construction does not possess a foxing-like band. See, e.g., HRL 072705 dated July 1, 1983, HRL 070506 dated September 26, 1983, NYRL's 889317 and 889318 dated August 26, 1993, and NYRL 869746 dated December 20, 1991.

A mock welt is not defined in the HTSUS but is generally considered to be a strip of material which is affixed to the outer edge of the sole and gives an appearance of a welt.

It should be noted that although T.D. 83-116 excludes mock welts from consideration as foxing, there is nothing in the guidelines relating to the characteristics of a foxing-like band which would preclude mock welts per se from consideration as foxing-like bands.

In HRL 069633 dated June 22, 1982, Customs took the position that a separately applied imitation welt (cemented to the edge of the sole) is not a part of the sole. However, the imitation welts on the boots in issue have been engineered as actual parts of the molds. Consequently, the result reached in HRL 069633 does not apply to the construction in issue because the welt portion is an integral part of the unit molded sole. See HRL 070506 dated September 26, 1983.

With your supplemental submission dated September 6, 1994, you furnished a sample of a unit molded sole [Exhibit A] used in the construction of both styles of the footwear in issue. You state that "[b]ased on our measurement, if the upper rested on the top of the sole (i.e., the vertical plane measured across the top of the honeycombs), Customs would be correct in concluding that the footwear has a foxing-like band. However, the styles in question are not constructed in this manner."

You state that Exhibits B and C, which are additional samples of the boots in issue, have "a filler resting on the top of the outer sole. The presence of this filler prevents the upper from resting on the top of the outsole. Rather, the upper and sole meet at the bottom of the cupping radius. When Customs measures the overlap of the upper and outsole from where these two components initially meet (i.e., the bottom of the cupping radius), Customs will find that the overlap is less than 1/4 inch."

An examination of Exhibits B and C reveals that their uppers extend downward below the fillers and are overlapped by the outsoles from that point. By our measurements the overlap of the uppers by the outsoles is 1/4 inch or more around the entire perimeter of the boots. Consequently, the subject boots possess foxing-like bands which precludes classification under subheading 6402.91.40, HTSUS.

It is our position that the subject boots are designed to be protective against cold or inclement weather noting that they have "Thinsulate Thermal" linings in addition to foam to provide added protection for the wearer in cold and inclement weather.

HOLDING:

DD 898255 is affirmed.

Styles 1585A and 1594A possess foxing-like bands which preclude their classification under subheading 6402.91.40, HTSUS.

Styles 1585A and 1594A are dutiable at the rate of 37.5% ad valorem under subheading 6402.91.50, HTSUS.

Sincerely,

John Durant, Directo

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