Classification of a women's rubber boot with a foxing-like band

HQ 082083 February 10, 1989 CLA-2:CO:R:C:G 082083 SR CATEGORY: Classification TARIFF NO.: HTSUS 6402.91.50 Mr. Ike Matitia International Seaway Trading Corp. 1382 West 9th Street Cleveland, Ohio 44113 RE: Classification of a women's rubber boot with a foxing-like band Dear Mr. Matitia: This is in reference to your letter dated November 16, 1987, in which you requested the tariff classification of a women's boot. The Harmonized Tariff Schedule of the United States Annotated (HTSUSA) became effective on January 1, 1989, consequently, we are only issuing rulings under the HTSUSA. FACTS: The merchandise at issue is a women's boot which is approximately 10 3/4 inches in height. It has a plastic upper that is functionally stitched to a unit molded rubber sole. There is a gap between the bottom edge of the plastic upper and the top of the outer sole of approximately 3/16 of an inch at the ball of the foot, but there is no gap in the toe area. There is a rubber sidewall around the shoe which is 3/4 inch high at the front of the boot and 1-1/8 inches high at the heel. The boot has a side zipper closure and a textile lining. ISSUE: Whether the boot at issue has a foxing-like band. -2- 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 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. The boot does meet the description provided in subheading 6402.91.40, HTSUSA, and the 3 cm exception, however, it does not meet the foxing-like band exception. T.D. 83-116 states that a sole that is molded to look like a foxing can be a foxing-like band even if it performs no function. A design feature in the form of a band must be applied or molded at the sole and overlap the upper. 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. A foxing-like band must also encircle or substantially encircle the entire shoe. The band around the boot at issue meets this description of a foxing-like band. The band resembles a foxing and encircles the entire shoe. It is molded at the sole and overlaps the upper by more than 1/4 inch. The cupsole which acts as a foxing-like band does overlap the upper throughout most of the shoe. The sidewall of the boot at issue is not high enough for the boot to be considered a moon boot. It has small mudguards that resemble a foxing whereas moon boots have sidewalls that are about 4 inches high that cover the foot. In a moon boot the upper does not extend down to the top of the outsole. In the boot at issue the bottom of the plastic upper does touch the top of the outer sole in parts of the shoe. - 3 - HOLDING: The boots at issue are classifiable under subheading 6402.91.50, HTSUSA, which provides for footwear, in which the upper's external surface is predominately rubber and/or plastics; in which the sole's external surface is predominately rubber and/or plastics; which is other than sports footwear; in which the top of the upper is above the wearer's ankle bone; which is designed to be a protection against water, oil, or cold or inclement weather; which is other than waterproof; and which has a foxing-like band. The rate of duty is 37.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division 6cc: Area Director, New York Seaport SRosenows:jaj:1/23/89