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NY L81270




December 29, 2004

CLA-2-64:RR:NC:247:L81270

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

Ms. Esther Isenberg
Right Stuff, Inc.
24 Ray Avenue – Suite 103
Burlington, MA 01803

RE: The tariff classification of footwear from China.

Dear Ms. Isenberg:

In your letter dated December 8, 2004, you requested a tariff classification ruling for a boot. You have submitted a sample of identified as article 74008-1 Red Moon. The sample is a child’s snow boot that covers the ankle. It features a removable lace that is attached by a series of D-rings and a loop at the back that allows the lace to tie around the ankle and secure the boot to the foot. It also has foam insulation measuring, uncompressed, more than ½ inch thick. The outer sole and upper is rubber/plastics. You inquire whether the boot is eligible for entry under subheading 6402.91.40, Harmonized Tariff Schedule of the United States (HTS).

You have cut the boot to reveal a molded rubber bottom with sidewalls that overlap the upper in excess of ¼ inch around the entire perimeter. We agree with your assessment that the boot submitted has a foxing or foxing-like band. You ask if you alter the boot to stitch the “mud guard” to the bottom edge of the shaft would you still have a foxing-like band. 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. It does not have to be a separate component and may or may not secure the joint between the sole and upper. A foxing-like band must be applied at the sole and must overlap the upper. It must also encircle or substantially encircle the entire shoe and can be attached by any means. This office can offer no opinion on whether or not footwear has a foxing or foxing-like band without an examination of a sample of the subject footwear.

You also inquire whether the boot submitted is entirely of non-molded construction 3 cm above the top of the outer sole.

Subheading 6402.91.40 HTS, provides for footwear with outer soles and uppers of rubber or plastics, covering the ankle, having uppers of which over 90 percent of the external surface area (including accessories or reinforcements) is rubber or plastics. In addition, footwear classified under this subheading must not have a foxing or foxing-like band. And finally, footwear classified under this subheading must not be 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 (protective). However, certain protective footwear is properly classified under this subheading if certain construction features are utilized. This concept is commonly referred to as the “exception to the protective exclusion.” In order to meet the requirements of the exception to the protective exclusion, protective footwear must have 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. The molded rubber sidewalls of the submitted sample extend to a point less than 3 cm above the top of the outer sole. In this regard, the boot has an upper which from a point 3 cm above the top of the outer sole is entirely of non-molded construction.

The applicable subheading for article 74008-1 Red Moon will be 6402.91.50, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear with outer soles and uppers of rubber or plastics; not "sports footwear"; covering the ankle, designed to be a protection against water, oil, grease or chemicals or cold or inclement weather. The rate of duty will be 37.5% ad valorem.

The submitted sample is not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist, Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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