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HQ 087200


August 20, 1990

CLA-2 CO:R:C:G 087200 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35; 6405.20.90

Sheryl L. Williams, Controller
Deep See Products
18935 59th Avenue, N.E.
Arlington, WA. 98223

RE: Footwear for Scuba Diving and Other Watersports

Dear Ms. Williams:

This is in response to your letter dated April 17, 1990, requesting the tariff classification of skin diving footwear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted for examination.

FACTS:

Sample "A" is an above the ankle boot and is approximately eight inches high. The boot has a stitched together upper of neoprene rubber sandwiched between two layers of nylon and a stitched-on sole which is composed of the same material as the upper. There is a full side zipper closure. The boot is 90 percent by weight of rubber and 10 percent by weight of nylon. Sample "B" is a slip-on boot, it is approximately 3 3/4 inches high and it has the same composition and construction as the above sample.

These articles are manufactured in and imported from Taiwan and are used primarily for skin diving and other water sports.

The importer has stated that some of the skin diving boots will have plastic bottoms and some will be sold without plastic bottoms.

ISSUE:

What is the tariff classification of the skin diving footwear?

LAW AND ANALYSIS:

Note 4(b) to Chapter 64, HTSUSA, provides that:

(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.

If the boots will not have plastic bottoms attached, the textile material will have the greatest contact with the ground and will therefore comprise the outer sole. As a result, this boot will be classifiable in Heading 6405, HTSUSA, which provides for other footwear. However, if the boots have plastic bottoms attached the nylon fabric on the bottom of the boot will not be the outer sole of the finished item. The plastic bottom will have the greatest surface area in contact with the ground and will form the outersole of the boots. This boot will be classifiable in Heading 6404, HTSUSA.

HOLDING:

The skin diving boots without plastic soles are classifiable in subheading 6405.20.90, HTSUSA, which provides for other footwear, with uppers of textile materials, other. The rate of duty is 12.5 percent ad valorem.

The skin diving boots with plastic soles are classifiable in subheading 6404.19.35, HTSUSA, which provides 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. The rate of duty is 37.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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