CLA-2-64:RR:NC:TA:346 B83786

Follick and Bessich
One Exchange Place, Suite 915
Jersey City, NJ 07312

RE: The tariff classification of two boots from Taiwan and China

Dear Sirs:

In your letter, for Cabela Inc., dated March 27, 1997, you requested a tariff classification ruling.

Style CH-81-0162, described as a Wading Boot in their catalog page which you supplied, has a woven fabric upper, a separate .75 inch heel, and two holes near the insole line on both sides of the upper near the arch area. The holes are clearly intended to allow water to escape after the fisherman leaves the stream. It is designed for normal use in conjunction with stocking waders, which are what keep the feet dry.

The applicable subheading for CH-81-0162 will be 6404.11.90, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which the upper's external surface is predominately textile materials (note that an accessory or reinforcement on top of another material is not part of the upper's external surface but the material hidden underneath is); in which the outer sole's external surface is predominately rubber and/or plastics; which is not "athletic" footwear; in which the upper's external surface is still 50% or less leather even after every leather accessory or reinforcement present is included as part of the upper's external surface; which is not designed to be a protection against water, oil, or cold or inclement weather; which has neither open toes nor open heels and is not a slip-on; and which is valued over $12.00 Per pair. The rate of duty will be 13.4 percent. Style CH 81-0221 has a relatively heavy, molded rubber cup sole with sidewalls which overlay the upper by between .5 inch to over 1 inch all around the shoe. The base material of the upper is, uncompressed, three sixteenths inch thick, consisting of neoprene rubber sandwiched between two layers of a stretchy textile material. There is a full-length zipper on one side behind which there is a gore made of the same material as the upper.

There are one sixteenth inch thick layers of unreinforced rubber attached, presumably by vulcanization, to the outside of the upper: 1. A strip that is at least 2 inches wide all around the shoe and substantially wider at the toe. 2. A large heel piece 3. Two .5 inch wide and 7 and 13 inch long strips covering the front and back seams of the neoprene material.

You refer to this style as a wading boot, as does the catalog page in the smaller print, but in the large print it calls it a "Flats Boot", which may mean it is used primarily in the flatter, thus shallower, areas of rivers, unlike waders. The other three styles of boots on that page are called wading boots in both the smaller and larger print.

Because of the large rubber strip, which even covers the bottom inch of the zipper, this item is completely waterproof if one stays in water under 2 inches deep. Due to the neoprene gore behind the zipper, the rubber strips on the seams and the waterproof material of the base material of the upper, the boot is very water resistant up to its top, which is about 8 inches above the ground. When NIS J. Sheridan held the undamaged sample down in a sink with 8 inches of water in it, it was only after 3 minutes had passed that he could feel the water that seeped through. It is clear that this item would keep the wearer`s foot dry if fishing in the puddles often found at the edge of streams and lakes, even if the wearer occasionally stepped into deeper puddles.

Although the neoprene material and zipper causes this item to resemble scuba and surfboarding boots, which are not protective against water because, in normal use, the wearer is fully immersed in water which, then, will enter the boot from around its topline, it is different, in that it has: 1. The unusually tall rubber tape around the lower part of the upper. 2. The rubber tape on the seams. 3. The sturdier and much heavier sole, which provides better protection against sharp rocks, but also makes it much harder to swim. 4. Its appearance in a catalog of items for hunters and non-ocean fishermen, not divers and others interested in aquatic sports. 5. The fact that the catalog notes that IF a stocking wader will be used, the wearer needs to order a size one or two sizes larger. Scuba and surfboarding boots are never worn with stocking waders, since that would make swimming impossible. On the other hand, wading boots are normally sized to accommodate stocking waders and have holes, as does the CH-81-0162, to allow drainage after leaving the water.

We did note that the catalog states, "Heel tabs aid in kicking them off or holding fin straps in place." While we readily agree with the former, we are assuming that the latter will not be more than as a fugitive use, noting especially 3 through 5 directly above. However, it is primarily the physical features cited in 1 to 3 directly above which establish that this item was designed with significant features to make it more useful to those who want to be in or near shallow water, but stay dry. We note that the thin rubber overlays are presumably much weaker in tension than the relatively thick neoprene between two textile layers, which they partially cover. Also, if these overlays had been removed from the parts list by the maker, who then refused to change the method and materials of attachment of the upper to the sole in view of their removal, the sidewalls of the cupsole, which appears to be a similar rubber, would adhere none-the-less quite well to the neoprene-fabric upper. Therefore, even taking into account the written opinion and statements from the bench of the CIT in Hi-Tec vs. US, Slip-Ops 96-139 and 97-24, the rubber overlays here are accessories or reinforcements per Note 4-a to Chapter 64. On that basis, the upper has an external surface that is predominantly textile by a wide margin. Therefore, your proposal to modify the sample in production to reduce the surface of the rubber overlays to get a classification in HTS 6404 is moot. The applicable subheading for CH-81-0221 will be 6404.19.20, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which the upper's external surface is predominately textile materials (note that an accessory or reinforcement on top of another material is not part of the upper's external surface, but the material hidden underneath is); in which the outer sole's external surface is predominately rubber and/or plastics; which is not "athletic" footwear; and which is designed to be a protection against water, oil, or cold or inclement weather. The rate of duty will be 37.5 percent.

We note that you requested a meeting to discuss this ruling request with us if we disagreed with your proposed classification in 6404.19.90 for both boots. It is contrary to the policy of this Division to have a meeting regarding a ruling request that has been submitted.

You requested that we return your samples. They are being returned in a separate mailing.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Sheridan at 212-466-5889.

Sincerely,

Paul K. Schwartz
Chief, Textiles & Apparel Branch
National Commodity
Specialist Division