CLA-2 CO:R:C:M 955697 DFC
Edmundo Torner, CHB
8025 N.W. 36th Street
Suite 319
Miami, Florida 33166
RE: Footwear; Divers's shoes; External surface of sole; Scuba
boots; Squiggle lines
Dear Mr. Torner:
This is in reference to your letter dated November 29, 1993,
to the Area Director of Customs in New York, on behalf of Wenoka
Cutlery Div of Schur, Inc., concerning the tariff classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of two scuba boots produced in China. Your letter,
together with samples of styles 42501 and 42502, has been
referred to this office for a response.
FACTS:
The subject merchandise consists of two styles of scuba
boots. Style 42501 does not cover the wearer's ankle bone while
style 42502 will cover the wearer's ankle bone. Both styles have
textile [2mm nylon] uppers and textile soles with rubber
"squiggle lines." These boots will be used by divers for
protection against chafing while wearing diving fins.
You maintain that both styles of scuba boots are
classifiable under subheading 6404.19.20, HTSUS, which provides
for footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of textile materials, footwear
with outer soles of rubber or plastics, 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 applicable rate of duty for this provision is 37.5%
ad valorem.
ISSUES:
Whether these "scuba boots" are footwear for tariff
purposes.
What is the constituent material of the outer soles having
the greatest surface area in contact with the ground?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]." In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.
ISSUE NO 1
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive
should be looked to for the proper interpretation of the HTSUS.
See 54 FR 35128 (August 23, 1989). The described use of the
boots, "by divers for protection against chafing while wearing
fins," makes them somewhat like "super-hosiery." However, we
note that hosiery is normally worn under footwear. Further,
diving fins (divers flippers) are not footwear within the purview
of chapter 64, HTSUS, following EN (B)(2) to heading 95.06, at
page 1592, which indicates that diver's flippers are covered
therein as equipment for other sports or outdoor games. It is
our position that the presence of the rubber "squiggle lines" on
the soles of the boots for traction (on wet decks) makes them
suitable for separate use as footwear.
ISSUE NO 2
Note 4(b) to chapter 64, HTSUS, reads as follows:
4. Subject to note 3 to this chapter:
(b) The constituent material of the outer sole shall
be taken to be the material having the greatest
surface area in contact with the ground, no
account being taken of accessories or
reinforcements such as spikes, bars, nails,
protectors or similar attachments.
Line 4(c) of the Footwear Worksheet indicates that the
rubber/plastic "squiggle lines" constitute 50% of the external
surface area of the outer soles of both styles of boots. Our
examination of the outer soles of the samples persuades us that
less than 50% of the external surface area of the outer soles is
rubber/plastics. Clearly, the area of textile material between
the rubber "squiggle lines" is the material having the greatest
surface area in contact with the ground.
In view of the foregoing, it is our position that the scuba
boots are classifiable under subheading 6405.20.90, HTSUS, as
other footwear with uppers of textile materials, other.
HOLDING:
The scuba boots are considered footwear for tariff purposes.
The constituent material of the scuba boots' outer soles is
textile.
The scuba boots are dutiable at the rate of 12.5% ad valorem
under subheading 6405.20.90, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division