CLA-2 RR:CR:TE 960756 GGD
Robert L. Follick, Esquire
Follick & Bessich
One Exchange Place, Suite 915
Jersey City, New Jersey 07302
RE: Modification of New York Ruling Letter (NY) B83786;
Wading Boots or “Flats” Boots; Not Footwear Designed
as Protection Against Water
Dear Mr. Follick:
In New York Ruling Letter (NY) B83786, issued to you April 23, 1997, on behalf of Cabela’s, Inc., Customs classified two styles of wading boots. As you may be aware, a typographical error in the third paragraph of the ruling’s first page incorrectly reflects the classification of boot style CH-81-0162 as subheading 6404.11.90. We note that this style’s classification is correctly entered as subheading 6404.19.90 in the “TARIFF NO.” line near the top of the first page, and that in the third paragraph, the classification description and rate of duty (in 1997) are accurately stated.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c), notice of the proposed modification of
NY B83786 was published on May 26, 1999, in the Customs Bulletin, Volume 33, Number 21. One comment was received.
The second boot, style CH-81-0221, was classified in subheading 6404.19.20, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision 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.” We have reviewed NY B83786 and, with respect to style CH-81-0221, have found it to be in error. Therefore, this ruling modifies NY B83786.
FACTS:
In NY B83786, boot style CH-81-0221 is described as having a relatively heavy, molded rubber cup sole with sidewalls which overlay the upper by from one half inch to over one inch all around the shoe. Uncompressed, the base material of the upper measures approximately 1/16 of an inch in thickness, and consists of neoprene rubber that is sandwiched between two layers of a
stretchy fabric of textile materials. There is a full-length
zipper on one side of the boot, behind which is a gore (or triangular gusset) composed of the same material as the upper.
The description in NY B83786 further notes that strips of unreinforced rubber, which measure approximately 1/16 of an inch in thickness, are attached to the outside of the upper, presumably by vulcanization. One strip, which varies in width from approximately 2 inches to 3-1/2 inches (wider at and near the toe), extends completely around the shoe. A heel piece measures approximately 4-3/4 inches in width by 2-3/4 inches in height. Two strips measuring approximately 1/2 inch in width cover the front and back seams of the neoprene material. The front strip measures approximately 13 inches in length. The back strip measures approximately 7 inches in length including a portion that is covered by the heel piece. Immediately above each heel piece is a small rectangular heel tab which protrudes outward approximately 1/4 inch from the upper. The boot is completely waterproof in water less than 2 inches in depth, and is water resistant in water less than 8 inches in depth (the approximate height of the boot). Water begins to seep into the boot after approximately 3 minutes of immersion in water that is between 2 and 8 inches in depth. The boot has no drainage holes in its lower portions.
Advertising literature from a catalog directed toward hunters and fishermen refers to the article in large print as a “Flats Boot” and in small print as “wading boots.” The body of advertising states:
Full-length supportive insole prevents injury on sharp rocks, coral and shells. These lightweight 5mm neoprene wading boots feature a full rubber rand with exterior toe and heel caps. Fully gussetted opening with heavy-duty YKK®side zipper. Multi-purpose outsole provides excellent traction. Heel tabs aid in kicking them off or holding fin straps in place. Order one or two sizes larger if wearing with waders.
ISSUE:
Whether the wading boot is classified in subheading 6404.19.20, HTSUSA, as footwear designed as a protection against water, or in subheading 6404.19.90, HTSUSA, as footwear that is not designed as a protection against water.
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.
Heading 6404, HTSUSA, covers “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” The issue subject to this ruling is whether or not style CH-81-0221 is designed to be protective footwear. To an extent, the boot is certainly capable of protecting the wearer against water, but it is not designed for this purpose. Active use of such a boot entails movement (turning, walking, sloshing, splashing, etc.). Even in water even as shallow as two inches in depth, movement causes water level fluctuation and eventual seepage through the upper of the boot. The advertising literature states that the boot protects against injury from (among other hazards) coral, predominately found in or near ocean saltwater, not in the generally more calm bodies of water such as lakes and streams. Although holes for drainage may indicate that interior water is contemplated and meant to pass through to the exterior of a boot, the absence of such holes in this boot does not necessarily indicate that it is designed to keep water out. When the boot is zipped closed and completely immersed, the tightly fitting top and lack of drain holes primarily deter the entry of fine sand, small pebbles, and shells that might otherwise infiltrate. The wide band of encircling rubber overlay and the heel piece appear to be designed to extend the protective attributes of the sturdy rubber sole upward to the lower portions of the upper and are not features designed to protect against water. The advertised suggestions that larger sizes of the boot should be purchased if used with waders, and that the heel tabs aid in retaining fin straps (possibly for fishing from an inner tube), further support a determination that the boot is not designed as a protection against water, but for use in water that is deeper than the height of the boot. In light of the analysis above, we find that the subject “flats boot” is not designed as a protection against water and is classified in subheading 6404.19.90, HTSUSA.
HOLDING:
The wading boot or “Flats Boot” identified by style CH-81-0221 is classified in subheading 6404.19.90, HTSUSA, the provision 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: Other: Valued over $12/pair [12 dollars per pair].” The general column one duty rate is 9 percent ad valorem.
NY B83786, issued April 23, 1997, is hereby modified. In accordance with 19 U.S.C. 1625(c), this ruling will become affective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division