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