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HQ 083861

June 06, 1989

CLA-2:CO:R:C:G 083861 SR


TARIFF NO.: 6402.91.50

Mr. C. Hartill
Superb Custom Brokers, Inc.
149-10 183rd Street
Jamaica, New York 11413

RE: Classification of a rainboot

Dear Mr. Hartill:

This is in reference to your letter dated February 6, 1989, requesting the classification of a woman's rainboot under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample produced in Italy was submitted.


The merchandise at issue is a women's rainboot. The sample submitted is identified as style "Colorado," and is labelled "Evan-Picone." The boot is 16 inches high with a plastic upper and a cemented-on plastic bottom. The upper has a stitched seam which runs the length of the back of the shaft that is reinforced on the inside by a glued and stitched-on textile tape. The stitched seams that hold the stiffer plastic pieces of the foot portion of the upper to each other and to the shaft are also reinforced by cementing together the edges where they overlap by approximately 1/2 inch.


Whether the woman's rainboot is classifiable under heading 6401, HTSUSA, as waterproof footwear, or under 6402, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics.


Heading 6401, HTSUSA, provides for waterproof footwear with outer soles of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes. The footwear at issue is not classifiable under this provision because the various parts of the upper are stitched together.

6402.91.40, HTSUSA, provides for 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 (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.

Due to the exception to exclusionary clause 2, the merchandise at issue cannot be classified under this subheading because it is not entirely of non-molded construction. The cementing of the stitched seams and the backing of some of the seams with waterproof tape constitutes a method of construction that is not entirely of non-molded construction formed by sewing the parts together.


The merchandise at issue is classifiable under subheading 6402.91.50, HTSUSA, as footwear, in which the upper's and outer sole's external surfaces are predominately rubber and/or plastics, which is other than sports footwear, which does not have a protective metal toe cap, which covers the wearer's ankle, which is designed to be a protection against water, oil or cold or inclement weather, which has an upper which is assembled by stitching, in which the upper's external surface is over 90
percent rubber and/or plastics after every accessory and reinforcement present is included as part of the upper's external surface, and which has an upper that is not entirely of stitched construction down to 3 cm or less from the top of the outer sole. The rate of duty is 37.5 percent ad valorem.


John Durant, Director

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