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HQ 087134


September 28, 1990

CLA-2 CO:R:C:G 087134 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

District Director of Customs
7911 Forsythe Blvd., Suite 625
St. Louis, Missouri 63105

RE: Request for Further Review of Protest 4503-9-000020, dated December 12, 1989, Concerning Ladies Boots With Outer Soles and Uppers of Rubber or Plastic, Forest Style

Dear Sir:

This protest was filed against your decision in the liquidation on September 12, 1989, covering a shipment of women's boots manufactured in Taiwan. A sample boot was submitted for examination.

FACTS:

The sample woman's boot, designated as style "forest", measures approximately 18 inches high and has a unit molded rubber sole cemented to a polyurethane upper. The shaft of the boot is stitched up both sides of the shaft to a point about 3 1/2 inches from the top. The top front portion of the shaft slightly overlaps the rear portion of the shaft. The shaft is lined with acrylic pile except for the top 4 1/2 inches which is lined with fake fur. There is a sewn loop label on the inside on the inside approximately 1 3/4 inches from the top front of the shaft.

The shipment of women's boots was liquidated under the provision for other footwear covering the ankle 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 in subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), and dutiable at the rate of 37.5 percent ad valorem.

The protestant maintains that the footwear is properly classifiable under the provision for other footwear covering the ankle having uppers of which over 90 percent of the external surface area is rubber or plastics and is 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 in subheading 6402.92.04, HTSUS, and dutiable at the rate of 6 percent ad valorem.

ISSUE:

Does the sample boot have an upper the exterior surface area of which is over 90 percent plastics?

LAW AND ANALYSIS:

Counsel for the protestant claims that the boot is not designed to be worn with the top of the shaft turned over to form a cuff. Counsel states that if the upper part of the shaft is turned over, it forms a sloppy and unstylish cuff. Counsel states that the lining of the upper shaft has a longer pile for warmth and protection and that the longer pile shows slightly at the top edge of the boot and at the side slits to give the impression that the boot is fur lined. Counsel also notes that the label sticks out conspicuously on the front of the boot and that it would render the shaft unsuitable for rolling down to form a cuff, even if the cuff would stay smoothly in place.

You note that the lining of the top of the shaft is made of a material which is different from the lining material of the lower part of the shaft and that that material is more attractive than the material utilized for the lower part of the shaft. You also note that the shaft is capable of being cuffed and that the label appearing in the top inside of the shaft is intended to be removed and that its presence should not be a problem in determining classification that the boot is cuffable. You believe that the since the boot is cuffable, the external surface of its upper is not over 90 percent rubber or plastic.

We agree with your reasoning and the conclusion reached that the boot is designed to be worn cuffed. Consequently, since the exterior surface area of the boot's upper is not over 90 percent plastics, it is precluded from classification under subheading 6402.91.40, HTSUS, and is properly classifiable under item 6402.91.50, HTSUS.

However, we note that New York Ruling (NYRL) 849624, issued on March 7, 1990, holds the opposite as to the exact same merchandise. While rulings are normally prospective in their application and the above ruling was issued subsequent to subject protest, we believe that NYRL 849624 must be followed as to this protest.

HOLDING:

The protest should be allowed. A copy of this decision should be attached to your Form 19 Notice of Action to be sent to the protestant.

NYRL 849624 is revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division

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