HQ 087134: Request for Further Review of Protest 4503-9-000020, datedDecember 12, 1989, Concerning Ladies Boots With Outer Soles andUppers of Rubber or Plastic, Forest Style

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 087134

                       September 28, 1990

CLA-2 CO:R:C:G 087134    ALS

CATEGORY: Classification

TARIFF NO.:  6402.91.40

District Director of Customs
7911 Forsythe Blvd., Suite 625
St. Louis, Missouri  63105

RE:  Request for Further Review of Protest 4503-9-000020, dated
December 12, 1989, Concerning Ladies Boots With Outer Soles and
Uppers of Rubber or Plastic, Forest Style

Dear Sir:

     This protest was filed against your decision in the
liquidation on September 12, 1989, covering a shipment of women's
boots manufactured in Taiwan.  A sample boot was submitted for
examination.

FACTS:

     The sample woman's boot, designated as style "forest",
measures approximately 18 inches high and has a unit molded
rubber sole cemented to a polyurethane upper.  The shaft of the
boot is stitched up both sides of the shaft to a point about 3
1/2 inches from the top.  The top front portion of the shaft
slightly overlaps the rear portion of the shaft.  The shaft is
lined with acrylic pile except for the top 4 1/2 inches which is
lined with fake fur.  There is a sewn loop label on the inside on
the inside approximately 1 3/4 inches from the top front of the
shaft.

     The shipment of women's boots was liquidated under the
provision for other footwear covering the ankle 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 in
subheading 6402.91.50, Harmonized Tariff Schedule of the United
States (HTSUS), and dutiable at the rate of 37.5 percent ad
valorem.


                              - 2 -

     The protestant maintains that the footwear is properly
classifiable under the provision for other footwear covering the
ankle having uppers of which over 90 percent of the external
surface area is rubber or plastics and is 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 in
subheading 6402.92.04, HTSUS, and dutiable at the rate of 6
percent ad valorem.

ISSUE:

     Does the sample boot have an upper the exterior surface
area of which is over 90 percent plastics?

LAW AND ANALYSIS:

     Counsel for the protestant claims that the boot is not
designed to be worn with the top of the shaft turned over to form
a cuff.  Counsel states that if the upper part of the shaft is
turned over, it forms a sloppy and unstylish cuff.  Counsel
states that the lining of the upper shaft has a longer pile for
warmth and protection and that the longer pile shows slightly at
the top edge of the boot and at the side slits to give the
impression that the boot is fur lined.  Counsel also notes that
the label sticks out conspicuously on the front of the boot and
that it would render the shaft unsuitable for rolling down to
form a cuff, even if the cuff would stay smoothly in place.

     You note that the lining of the top of the shaft is made of
a material which is different from the lining material of the
lower part of the shaft and that that material is more attractive
than the material utilized for the lower part of the shaft.  You
also note that the shaft is capable of being cuffed and that the
label appearing in the top inside of the shaft is intended to be
removed and that its presence should not be a problem in
determining classification that the boot is cuffable.  You
believe that the since the boot is cuffable, the external surface
of its upper is not over 90 percent rubber or plastic.

     We agree with your reasoning and the conclusion reached that
the boot is designed to be worn cuffed.  Consequently, since the
exterior surface area of the boot's upper is not over 90 percent
plastics, it is precluded from classification under subheading
6402.91.40, HTSUS, and is properly classifiable under item
6402.91.50, HTSUS.


                              - 3 -

     However, we note that New York Ruling (NYRL) 849624, issued
on March 7, 1990, holds the opposite as to the exact same
merchandise.  While rulings are normally prospective in their
application and the above ruling was issued subsequent to subject
protest, we believe that NYRL 849624 must be followed as to this
protest.

HOLDING:

     The protest should be allowed.  A copy of this decision
should be attached to your Form 19 Notice of Action to be sent to
the protestant.

     NYRL 849624 is revoked.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division
6cc: A.D., New York Seaport
1cc: NIS Eric Francke
1cc: Regional Commissioner, North Central Region
2cc: Chief, C.I.E.
1cc: Regulatory Trade Programs Division
1cc: IS St. Louis, Missouri
















087134    Ladies Plastic Boots
ALSARASKY 9/11/90