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HQ 086689


May 15, 1990

CLA-2 CO:R:C:G 086689 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3500

Mr. Tony Shih
Action Plus/N.Y.C. Corporation
17531 Railroad St., #C
City of Industry, CA 91748

RE: Footwear for Scuba Diving and Other Watersports

Dear Mr. Shih:

This is in response to your letter dated January 30, 1990, addressed to our New York office, in which you requested a tariff classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) regarding the above-referenced merchandise. A sample was submitted with your request.

FACTS:

The article in question is a slip-on boot, size medium, approximately six inches high, made from 1/8 inch thick neoprene rubber sandwiched between two layers of nylon knit fabric. The nylon fabric of the outer sole is covered with plastic diamond- shaped dots designed to provide traction. The traction dots do not completely cover the sole but are spaced roughly 1/16 of an inch apart, thus permitting some of the nylon fabric to remain visible. The boot is manufactured in and imported from Taiwan and is used for scuba diving and other water sports.

ISSUE:

Whether scuba diving footwear with textile outer soles covered with plastic diamond-shaped traction dots are considered to be covered with plastics within the meaning of Note 3, Chapter 64, such that they are classifiable in heading 6404, HTSUSA.

LAW AND ANALYSIS:

Heading 6404, HTSUSA, provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials. According to Note 3, Chapter 64, HTSUSA, the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of these materials. While the plastic dots do not completely cover the boot's outer sole, Note 3 does not require that the coating be uniform, but merely that it be visible. Since the plastic dots are an obvious feature of the boot, it is Customs' position that they constitute a visible covering within the meaning of Note 3.

This view finds further support in Note 4(b), Chapter 64, HTSUSA, which provides, subject to Note 3, that the material having the greatest surface area in contact with the ground will be deemed the constituent material of the outer sole. The plastic dots not only have the greatest surface area of the outer sole but also are the first point of contact with the ground as they are designed to give added traction.

Subheading 6404.11 provides for sports footwear. However, according to Subheading Note 1, Chapter 64, HTSUSA, the expression "sports footwear" applies only to footwear which is designed for a sporting activity and has, or has provision for, spikes, sprigs, cleats, stops, clips, bars or the like, or alternatively, to certain specific articles of sports footwear, e.g., ski-boots. Customs does not consider traction dots of the type applied to the scuba boots at issue to be analogous to spikes or cleats.

Subheading 6404.19.20 provides for 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. Customs has previously held that scuba diving boots neither keep the wearer's feet dry since water will seep through at the top of the boot, nor do they offer protection against cold or inclement weather as would, for example, an insulated hunting boot. See New York Ruling Letters 811066 dated November 24, 1984, and 811929 dated March 5, 1985. We continue to adhere to this position.

HOLDING:

In view of the above, the article in question is classifiable in subheading 6404.19.3560, HTSUSA, under the provision for footwear with outer soles of rubber or plastics, other, footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners..., other, other, for women, and are dutiable at 37.5 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local

Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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