HQ 086213: Rubber boot

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 086213

                                  February 23, 1990

          CLA-2:CO:R:C:G  086213  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.5060

          Dick McAuliffe
          New World, Inc.
          800 West Cummings Park
          Woburn, MA 01801

          RE: Rubber boot

          Dear Mr. McAuliffe:

               This is in reference to your letter dated December 29, 1989,
          requesting the tariff classification of a winter boot under the
          Harmonized Tariff Schedule of the United States Annotated
          (HTSUSA).  A sample produced in Korea was submitted.

          FACTS:

               The merchandise at issue is a woman's insulated winter
          rubber boot that is approximately 7 inches tall.  It has a
          polyurethane upper with vinyl overlays and two textile overlays.
          The upper is functionally stitched to a unit molded rubber sole.
          There is a rubber sidewall around the shoe which overlaps the
          upper by more than 1/4 inch.  The boot has a honeycomb sole.

          ISSUE:

               What is the classification of the boot at issue?

          LAW AND ANALYSIS:

               The importer claims that the boot at issue should be
          classified under subheading 6402.91.40, HTSUSA, which provides
          for other footwear with outer soles and uppers of rubber or
          plastics, other footwear, covering the ankle, having uppers of





















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          which over 90 percent of the external surface area is rubber or
          plastics, except footwear having a foxing-like band applied or
          molded at the sole and overlapping the upper, and 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 at a duty rate of 6 percent.

               No measurement of the textile overlays was provided;
          however, the overlays appear make up close to 10 percent of the
          external surface area.  Because we can classify this boot based
          on other factors we will not require this information to be
          furnished.

               The boot at issue does not have a foxing-like band; however,
          it is designed to be worn over or in lieu of other footwear as
          protection because it has an insulating liner.  Therefore, in
          order to be classified under subheading 6402.91.40, HTSUSA, the
          boot must be entirely of non-molded constructed at a point 3 cm
          above the top of the outer sole.  This boot does not meet the
          3 cm exception.  The sidewall of the unit molded sole of the shoe
          at issue measures more than 3 cm high from the top of the outer
          sole.

               HRL 081977, dated September 22, 1988, dealt with the issue
          of the measurement of 3 cm from the top of the outer sole.  This
          ruling determined that the top of the outer sole in boots with
          "cascade bottoms", as well as boots with honeycomb soles are
          measured from the bottom of the holes.  This ruling stated that
          in this kind of sole, the thickness of the rubber in the lower
          part of the sole between the bottom of the holes and the ground
          remains consistent throughout the shoe.  Therefore, height of the
          sidewall must be measured from the bottom of the holes since they
          are of a constant height from the bottom of the shoe.

               The boot at issue does not meet this 3 cm exception, and
          therefore, cannot be classified under subheading 6402.91.40,
          HTSUSA.





















                                         -3-

          HOLDING:

               The boots at issue are classifiable under subheading
          6402.91.5060, HTSUSA, which provides for other footwear with
          outer soles and uppers of rubber or plastics, other footwear,
          covering the ankle, 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, for women.
          The rate of duty is 37.5 percent ad valorem.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division















































          6 cc A.D. New York Seaport
          1 cc Durant
          1 cc legal reference