CLA-2 CO:R:C:M 088956 NLP
Mr. Robert Stang
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Women's Fleece-Lined Plastic Boot
Dear Mr. Stang:
This is in response to your letter dated February 19, 1991,
on behalf of E.S. Originals, requesting a tariff classification
ruling under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) for women's fleece-lined plastic boots. A
sample of the boot was submitted for our examination.
FACTS:
The merchandise involved is Style No. P13320, a women's
calf-high snow boot with a fleece trim that measures
approximately 9 inches with the shaft standing straight up. The
shaft of the boot is lined with fleece. When the shaft of the
boot is straight up, the external surface area of the boot's
upper is over 90 percent rubber and/or plastic. In addition, the
country of origin label is located on the inside of the shaft
about a 1/2 inch from the top of the boot.
ISSUE:
Does the boot have an upper the external surface area of
which is over 90 percent plastics.
LAW AND ANALYSIS:
Counsel for the importer argues that the instant boots are
not intended to be cuffed and therefore, have uppers of which
over 90 percent of the external surface area is rubber or
plastics. Counsel argues that Headquarter's Ruling Letter (HRL)
075075, dated December 3, 1984, the construction of the boots and
the placement of the label confirm that the boots were not
designed to be cuffed. Therefore, the boots would be
classifiable in 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 (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.
Ruling 075075 dealt with the classification of a women's
plastic slip-on boot with a synthetic fur trim and a shaft made
of black woven nylon. This ruling held that the boot was not
designed to be cuffed because the lining material was the same
throughout the entire length of the interior of the shaft, unlike
most cuff boots which use a different lining for the cuff
portion. In addition, when the top of the shaft was rolled over,
it did not lie flat. Finally, the bifurcation ( a "v" cut at
the back of the shaft) was for the purpose of enabling a woman to
more easily insert the legs of her jeans within the boot and it
caused the rolled over shaft to have a winged looked which was
inconsistent with a cuff. As a result, the boot was classified
as having an upper with an exterior surface area of over 90
percent rubber/plastics.
Two recent cases, HRL 088353 and HRL 088403, dealt with the
issue of whether certain snow boots were designed to be cuffed or
uncuffed. HRL 088353, dated March 12, 1991, dealt with the
classification of a ladies' plastic boot called the "Fur Cuff
Fold Down". This case held that the boot was designed to be
cuffed and was classifiable in subheading 6402.91.50, 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. The ruling stated that the boot was
designed to be worn cuffed for the following reasons:
(1) the country of origin label was easily removed and
contained the statement "Fur Cuff Fold Down";
(2) the different and better looking material at the top of
the shaft liner (fake fur v. fake pile);
(3) the cuff laid perfectly flat and there were no wings
when folded down;
(4) the notch at the back of the upper made it easier to
fold the cuff down;
(5) the label, if not removed, would be unpleasant against
the leg.
HRL 088403, dated March 22, 1991, dealt with the
classification of a women's calf-high snow boot that had a set of
snap closures and a V cut at the top of the shaft. The country
of origin label was located approximately 3-1/2 inches down from
the top of the shaft. This ruling stated that the configuration
of the boots in their cuffed condition could be considered
permanent based on the presence of the snap closures at the top
of the shaft. In addition, the uppers did lie flat since they
were held in place by snap closures. Therefore, since the boot
was designed to be cuffed, this ruling held that the boot's upper
was not over 90 percent rubber/plastic and it was classifiable in
subheading 6402.91.50, HTSUSA.
The instant boot is distinguishable from the boots in the
above two rulings. Unlike the boot in HRL 088353, the instant
boot does not have a different liner at the top of the shaft.
The lining material is the same throughout. The cuff does not
lie perfectly flat and there are wings when it is folded down.
Moreover, unlike the boot in HRL 088403, the instant boot does
not have snaps that would enable a cuff to be permanent and lie
flat. In addition, the country of origin label is 1/2 inch away
from the top of the shaft where it is easily seen if the top part
is folded over. Though this boot does have some factors present
in the other boots, for example, the label can be removed and the
fleece lining is an attractive material, these factors are not by
themselves sufficient to make this a boot designed to be worn
cuffed. The instant boots are not designed to be cuffed and have
uppers whose external surface areas are over 90 percent
rubber/plastic.
HOLDING:
The instant boots are classifiable in subheading 6402.91.40,
HTSUSA. The rate of duty is 6 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division