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HQ 960940




July 21, 1998

CLA-2 RR:CR:TE 960940 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Area Director
U.S. Customs Service
JFK Airport Area
Building 77
Jamaica, New York 11430

RE: Internal Advice Request No. 19/97; Ladies' Cold Weather Boot; T.D. 93-88; Not Designed/Intended to be Cuffed

Dear Sir:

This letter is in response to Internal Advice Request No. 19/97, initiated by a letter dated February 25, 1997, submitted by Ross & Hardies, 65 East 55th Street, New York, New York, 10022-3219, on behalf of North Walk, Ltd. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a woman's cold weather boot made in China. A sample boot was submitted. Subsequent to the request and submission, a conference was held with Headquarters personnel on January 26, 1998.

FACTS:

The sample, identified by the style name "Cynthia," is a ladies' cold weather boot with a rubber and/or plastic outer sole and upper. The boot measures approximately 14 inches in height and contains a man-made fleece lining which extends the entire length of the shaft. The boot has a zipper in the front which extends to within approximately 3 inches of the top line. A country of origin label is sewn into the seam on the inside rear of the shaft. The top of the label is fixed at a point which measures approximately 2 inches down from the top of the shaft.

Customs laboratory analysis indicates that, when the top of the shaft is folded down to form a cuff measuring 2 inches in width, the external surface area of the upper (ESAU) is composed of 78.1 percent rubber/plastic and 21.9 percent textile. In an uncuffed position, the ESAU, including any accessories and reinforcements, is composed of over 90 percent rubber and/or plastic. Although advertising literature is said to be unavailable, a copy of materials supplied to buyers for retail outlets contains a sketch which shows the boot in an uncuffed position.

ISSUE:

Whether or not the boot is designed and intended to be cuffed which, in turn, determines whether the boot is found to have an upper, the external surface area of which is over 90 percent rubber or plastics.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Whether the boot is classified in subheading 6402.91.40 or in subheading 6402.91.50, HTSUS, essentially depends upon whether or not the article is designed and intended to be cuffed. If not, the ESAU would be over 90 percent rubber or plastics and the boot would be classified in subheading 6402.91.40, HTSUS, the provision 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."

On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, Customs published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions used by Customs import specialists to classify footwear. The footwear definitions were provided merely as guidelines and, although consulted here, are not to be construed as Customs rulings. In pertinent part, T.D. 93-88 states: "It is assumed that the top of the shaft, i.e., the cylindrical piece which covers the leg above the ankle, will be folded down in use to expose part of the textile lining as a "cuff" if:"

1. The country of origin/size label will not be visible when the top of the shaft is cuffed down. Or, it can be easily removed without damaging the underlying material. Or, it does not detract from the appearance of the boot if it is exposed by cuffing.

2. The top 3 to 5 inches of the outside of the shaft are a poor match in color or in design for the lower part of the shaft, indicating that the boot will be cuffed to hide that area.

3. At the top of the shaft there is a split down the back which facilitates cuffing the boot, and which is so designed that, when cuffed, the back edges of the cuff lay flat and do not flare out from the body of the shaft.

4. The lining of the top 4 to 8 inches of the shaft is made of a material which is different from the lining material of the lower part of the shaft and is equally or more attractive as a cuff material than the other material.

On the other hand, it is assumed the top of the shaft will not be folded down if:

1. The size and country of origin label is securely sewn into the inside back seam within an inch or two of the top of the shaft.

2. The shaft is lined with tricot (an open unit fabric) bonded to foam plastic or with another material which is equally unacceptable in appearance as a "cuff."

3. The zipper closure goes all the way up to the top of the boot.

When none of the features described above are present, other factors, including the advertising and display of similar boots to the consumer, must be considered.

Our examination of the subject boot indicates that, when the top of the shaft is turned down approximately two inches to form a cuff, the looped banner-type label (approximately two inches from the uncuffed top) is clearly visible. Since it is sewn into the seam, the label's removal would cause a gap in the seam. Its presence, however, detracts from the appearance of the boot if cuffed. The upper and lower parts of the outside of the shaft match in color and texture (and the "design," if any, is unremarkable). Although the zipper does not go all the way to the top of the shaft, the split at the top is not designed so that the edges of the cuff lie flat when cuffed. There is no fastening device (e.g., a snap, a loop and button, a hook and loop fabric fastener, etc.) by which the cuffed edges may be connected at the front, or pressed and held flat against the outside of the shaft. Further, the split and the flared cuff edges are not at the back, but at the seemingly more visible front, of the boot. Although the lining material is attractive, it is also consistently present throughout the entire length and circumference of the shaft.

In Headquarters Ruling Letter (HQ) 088956, issued May 20, 1991, this office found that a woman's fleece-lined plastic boot was not intended to be cuffed and was thus classified in subheading 6402.91.40, HTSUS. Despite the fact that the boot's otherwise easily seen label was not difficult to remove, the boot was distinguished from the cuffable boots subject to two earlier rulings - HQ 088353 and 088403, issued March 12 and March 22, 1991, respectively - based upon: 1) the consistency of the boot's attractive fleece lining material from the top to the bottom of the shaft; 2) the inability of the cuff to lie perfectly flat (i.e., without wings); and 3) the absence of snaps to hold the cuff flat.

The factors used in HQ 088956 to determine that the boot was not intended to be cuffed are also present in this case. In addition, the "Cynthia" boot has a highly visible label that is
securely sewn and not easily removed without damage. Although HQ 088956 is silent as to the location of the split (front, back, or side) at the top of the boot from which the edges of the cuff flared outward somewhat unattractively, we find it significant in this case that the split is at the front of the boot, and that there is no feature designed to restrain the flared edges of the cuff. These facts and the other factors considered above lead us to conclude that style "Cynthia" is neither designed nor intended to be cuffed. The ESAU is therefore over 90 percent rubber or plastics and the boot is classified in subheading 6402.91.40, HTSUS.

HOLDING:

The ladies' cold weather boot identified by the style name "Cynthia," is classified in subheading 6402.91.40, HTSUS, the provision 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... is rubber or plastics...." The general column one duty rate is 6 percent ad valorem.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. After sixty days, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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