CLA-2 RR:CR:TE 960940 GGD
Area Director
U.S. Customs Service
JFK Airport Area
Building 77
Jamaica, New York 11430
RE: Internal Advice Request No. 19/97; Ladies' Cold Weather
Boot; T.D. 93-88; Not Designed/Intended to be Cuffed
Dear Sir:
This letter is in response to Internal Advice Request No.
19/97, initiated by a letter dated February 25, 1997, submitted
by Ross & Hardies, 65 East 55th Street, New York, New York,
10022-3219, on behalf of North Walk, Ltd. The request concerns
the classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of a woman's cold weather boot
made in China. A sample boot was submitted. Subsequent to the
request and submission, a conference was held with Headquarters
personnel on January 26, 1998.
FACTS:
The sample, identified by the style name "Cynthia," is a
ladies' cold weather boot with a rubber and/or plastic outer sole
and upper. The boot measures approximately 14 inches in height
and contains a man-made fleece lining which extends the entire
length of the shaft. The boot has a zipper in the front which
extends to within approximately 3 inches of the top line. A
country of origin label is sewn into the seam on the inside rear
of the shaft. The top of the label is fixed at a point which
measures approximately 2 inches down from the top of the shaft.
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Customs laboratory analysis indicates that, when the top of the
shaft is folded down to form a cuff measuring 2 inches in width,
the external surface area of the upper (ESAU) is composed of 78.1
percent rubber/plastic and 21.9 percent textile. In an uncuffed
position, the ESAU, including any accessories and reinforcements,
is composed of over 90 percent rubber and/or plastic. Although
advertising literature is said to be unavailable, a copy of
materials supplied to buyers for retail outlets contains a sketch
which shows the boot in an uncuffed position.
ISSUE:
Whether or not the boot is designed and intended to be
cuffed which, in turn, determines whether the boot is found to
have an upper, the external surface area of which is over 90
percent rubber or plastics.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Whether the boot is classified in subheading 6402.91.40 or
in subheading 6402.91.50, HTSUS, essentially depends upon whether
or not the article is designed and intended to be cuffed. If
not, the ESAU would be over 90 percent rubber or plastics and the
boot would be classified in subheading 6402.91.40, HTSUS, the
provision 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
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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."
On November 17, 1993, in the Customs Bulletin, Volume 27,
Number 46, Customs published Treasury Decision (T.D.) 93-88,
which contains certain footwear definitions used by Customs
import specialists to classify footwear. The footwear
definitions were provided merely as guidelines and, although
consulted here, are not to be construed as Customs rulings. In
pertinent part, T.D. 93-88 states: "It is assumed that the top of
the shaft, i.e., the cylindrical piece which covers the leg above
the ankle, will be folded down in use to expose part of the
textile lining as a "cuff" if:"
1. The country of origin/size label will not be visible when
the top of the shaft is cuffed down. Or, it can be easily
removed without damaging the underlying material. Or, it
does not detract from the appearance of the boot if it is
exposed by cuffing.
2. The top 3 to 5 inches of the outside of the shaft are a
poor match in color or in design for the lower part of the
shaft, indicating that the boot will be cuffed to hide that
area.
3. At the top of the shaft there is a split down the back
which facilitates cuffing the boot, and which is so designed
that, when cuffed, the back edges of the cuff lay flat and
do not flare out from the body of the shaft.
4. The lining of the top 4 to 8 inches of the shaft is made
of a material which is different from the lining material of
the lower part of the shaft and is equally or more
attractive as a cuff material than the other material.
On the other hand, it is assumed the top of the shaft will
not be folded down if:
1. The size and country of origin label is securely sewn
into the inside back seam within an inch or two of the top
of the shaft.
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2. The shaft is lined with tricot (an open unit fabric)
bonded to foam plastic or with another material which is
equally unacceptable in appearance as a "cuff."
3. The zipper closure goes all the way up to the top of the
boot.
When none of the features described above are present, other
factors, including the advertising and display of similar
boots to the consumer, must be considered.
Our examination of the subject boot indicates that, when the
top of the shaft is turned down approximately two inches to form
a cuff, the looped banner-type label (approximately two inches
from the uncuffed top) is clearly visible. Since it is sewn into
the seam, the label's removal would cause a gap in the seam. Its
presence, however, detracts from the appearance of the boot if
cuffed. The upper and lower parts of the outside of the shaft
match in color and texture (and the "design," if any, is
unremarkable). Although the zipper does not go all the way to
the top of the shaft, the split at the top is not designed so
that the edges of the cuff lie flat when cuffed. There is no
fastening device (e.g., a snap, a loop and button, a hook and
loop fabric fastener, etc.) by which the cuffed edges may be
connected at the front, or pressed and held flat against the
outside of the shaft. Further, the split and the flared cuff
edges are not at the back, but at the seemingly more visible
front, of the boot. Although the lining material is attractive,
it is also consistently present throughout the entire length and
circumference of the shaft.
In Headquarters Ruling Letter (HQ) 088956, issued May 20,
1991, this office found that a woman's fleece-lined plastic boot
was not intended to be cuffed and was thus classified in
subheading 6402.91.40, HTSUS. Despite the fact that the boot's
otherwise easily seen label was not difficult to remove, the boot
was distinguished from the cuffable boots subject to two earlier
rulings - HQ 088353 and 088403, issued March 12 and March 22,
1991, respectively - based upon: 1) the consistency of the
boot's attractive fleece lining material from the top to the
bottom of the shaft; 2) the inability of the cuff to lie
perfectly flat (i.e., without wings); and 3) the absence of snaps
to hold the cuff flat.
The factors used in HQ 088956 to determine that the boot was
not intended to be cuffed are also present in this case. In
addition, the "Cynthia" boot has a highly visible label that is
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securely sewn and not easily removed without damage. Although HQ
088956 is silent as to the location of the split (front, back, or
side) at the top of the boot from which the edges of the cuff
flared outward somewhat unattractively, we find it significant in
this case that the split is at the front of the boot, and that
there is no feature designed to restrain the flared edges of the
cuff. These facts and the other factors considered above lead us
to conclude that style "Cynthia" is neither designed nor intended
to be cuffed. The ESAU is therefore over 90 percent rubber or
plastics and the boot is classified in subheading 6402.91.40,
HTSUS.
HOLDING:
The ladies' cold weather boot identified by the style name
"Cynthia," is classified in subheading 6402.91.40, HTSUS, the
provision 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...." The general column one duty rate is 6
percent ad valorem.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. After sixty days, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division