HQ 083927
June 13 1989
CLA 2 CO:R:C:G 083927 DC
Robert B. Silverman, Esq
Grunfeld, Desiderio, Lebowitz & Silverman
Counselors at Law
12 East 49th Street
New York, NY 10017
RE: Tariff classification of two women's boots made in Italy
Dear Mr. Silverman:
Your letter dated February 14, 1989, addressed to our New York office concerning the dutiable status of certain women's boots, has been referred to this office for a direct reply to
you. Samples were submitted for examination.
FACTS:
The samples involved, designated as styles A. 53010 and A. 53027, are 17 inch high women's boots with plastic uppers and cemented on plastic bottoms. There is significant stitching on the uppers and the shafts. However, the stitched seams are all cemented and some are also backed with cemented waterproof tape.
You maintain that these boots are classifiable under subheading 6402.91.4045, Harmonized Tariff Schedule of the United States (HTSUSA), as other 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 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.
2
ISSUE:
Are these boots classifiable as waterproof footwear under heading 6401, HTSUSA?
Are the uppers of these boots from a point 3 cm above the top of the outer sole entirely of non molded construction formed by sewing the parts together and having exposed on the outer
surface a substantial portion of functional stitching?
LAW AND ANALYSIS:
Heading 6401, HTSUSA, provides for waterproof footwear with outer soles of rubber or plastics, the uppers of which are neither fixed to the sole not assembled by stitching, riveting,
nailing, screwing, plugging or similar processes. These boots are clearly precluded from classification under heading 6401, HTSUSA, because the various parts of the upper definitely employ stitching as part of the means of assembly and the exposed seams are readily evident on the boots' external surface areas.
With respect to the second issue, it is our position that the cementing of the stitched seams and the backing of some of these seams with waterproof tape constitutes a method of
construction that is not "entirely of non molded construction formed by sewing the parts together...." Also, we note that the cemented waterproof tape that backs the seams on style A. 53010 appears to be capable of holding the upper together without the aid of the stitching. Thus, the stitching would not be considered functional on this style. For these reasons both styles are
precluded from classification under subheading 6402.91.4045, HTSUSA.
HOLDING:
The styles in issue are rain boots classifiable under subheading 6402.91.5060, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, 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. The rate of duty for this provision
is 37.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division