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HQ 952304


January 27, 1993

CLA-2 CO:R:C:M 952304 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6401.92.90; 6401.92.60

Beth C. Brotman, Esq.
Siegel, Mandell & Davidson, P.C.
Counselors at Law
One Astor Plaza
1515 Broadway
43rd Floor
New York, New York 10036

RE: Boots, riding, Footwear, PVC, slush molded; Supported or lined; Otherwise supported or lined; GRI 2(a); Unfinished waterproof footwear; NYRL 858455 revoked

Dear Ms. Brotman:

In a letter dated July 23, 1992, on behalf of Miller Harness Company, Inc., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain polyvinyl chloride (PVC) riding boots which will be produced in France and/or the People's Republic of China. In a supplemental submission dated November 19, 1992, you presented additional arguments with relation to the issue as to whether the riding boots are "otherwise supported." A sample was submitted for examination.

FACTS:

The sample is a riding boot having PVC uppers and soles, which will be produced by a slush molded process. You state that "slush molding is a process in which an entire shoe is formed in one operation by means of hollow mold and heat applications to liquid compounds within that mold." The boots extend almost to the knee, have dressage tops (i.e., the inner side of the boot is shorter than the outerside), tapered legs, non-slip outer soles, Texon innersoles (non-PVC) and spur rests.

ISSUE:

Does the presence of Texon innersoles preclude classification of the riding boots under subheading 6401.92.60, HTSUS?

LAW AND ANALYSIS:

You claim that these boots are properly classifiable under subheading 6401.92.60, HTSUS, as waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes, other footwear, covering the ankle but not covering the knee, other, having soles and uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is polyvinyl chloride, whether or not supported or lined with polyvinyl chloride but not otherwise supported or lined. The applicable rate of duty for this provision is 6.6% ad valorem.

In support of this position, you cite New York Ruling Letter (NYRL) 858455 dated December 11, 1990, regarding the tariff classification of PVC riding boots which you assert are substantially similar to the boots in issue. We believe your reliance on NYRL 858455 is misplaced because the boots which were the subject of that ruling are different from the boots under consideration in this ruling request.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). EN (A) to heading 64.06, at p. 879, reads in pertinent part, as follows:

This heading covers:

(A) The various component parts of footwear: these parts may be of any materials except asbestos.

Parts of footwear may vary in shape according to the types or styles of footwear for which they are intended. They include:

(1) Parts of uppers (e.g., vamps, toecaps, quarters, legs, linings and clog straps), including pieces of leather for making footwear cut to the approximate shape of uppers.

(2) Stiffeners. These may be inserted between the quarters and linings, or between the toecap and lining, to give firmness and solidity at these parts of the footwear.

(3) Inner, middle and outer soles, including half soles or patins; also in-soles for gluing on the surface of the inner soles.

(4) Arch supports or shanks and shank pieces (generally of wood, leather, fibreboard or plastics) for incorporation in the sole to form the curved arch of the footwear.

You contend that the above cited EN shows that the drafters of the HTSUS recognized that "linings," "stiffeners," "inner soles," and "arch supports" listed above under paragraphs 1 through 4 are separate and distinct footwear components. You cite technical shoe publications which define "stiffeners" as adding support to the back part of the shoe and "arch supports" as additional support to the arch or foot. Further, the technical literature indicates that innersoles basically provide breathability absorption [to keep feet cool and comfortable], flexibility and structural integrity to the shoe.

In view of the above cited EN and definitions provided in the technical shoe publications, you conclude that:

1. while boots having "stiffeners" and/or "arch supports" would be "otherwise supported" and thus precluded from classification under subheading 6401.92.60, HTSUS, the boots at issue merely contain innersoles which are separate and distinct from support components i.e., "stiffeners" and "arch supports";

2. the primary features of innersoles such as breathability, absorption, [of particular importance in a PVC boot] are distinguishable from those of "stiffeners," "arch supports," and the like; and

3. although innersoles do aid in the retention of the shape of the shoes, they remain distinguishable from support components which provide additional firmness/ stiffness to the shoe, beyond that necessary to maintain the shoe's structural integrity.

We agree that the innersoles of the riding boots are separate and distinct components from "stiffeners" and "arch supports." However, this does not mean that they do not provide support for the shoe. An examination of the sample reveals that the Texon innersoles used in these riding boots are very rigid and definitely provide support for the boot (i.e., to maintain structural integrity). There is no requirement in the tariff schedule which requires that the term "otherwise supported" be interpreted to include only footwear components which provide "additional" support.

In view of the foregoing, it is our opinion that riding boots represented by the sample are classifiable under subheading 6401.92.90, HTSUS, as waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole not assembled by stitching, riveting, nailing, screwing, plugging or similar processes, other footwear, covering the ankle but not covering the knee, other, other. The applicable rate of duty for this provision is 37.5% ad valorem.

NYRL 858455 dated December 11, 1990, which was addressed to you concerned the tariff classification of two unfinished riding boots.

Those boots were described therein as follows:

You submitted two samples both of which are composed of polyvinyl chloride uppers and soles. You state these are produced through a slush molded process in France. The boots extend almost to the knee, have a dressage top (i.e., the inner side of the boot is shorter than the outerside), tapered legs, non slip soles and spur rests. Neither style has a name or number. You state that these styles will be imported without linings and with unfinished top edges, as depicted by the submitted samples. Subsequent to importation, the boots will be finished by Miller Harness in the United States as follows: (1) heel counters will be inserted into the boots; (2) a tricot lining, in the case of one style, and a cambric lining, in the case of the other style, will be cut to size, sewn to inner soles and inserted into the boots; (3) the top edge of the boot containing the tricot lining will be finished with stitching, while the top edge of the style with cambric lining will be finished with leather trim which will be sewn to the lining and then sewn to the boot.

Based on the foregoing description, New York Customs concluded that these unfinished boots were classifiable under subheading 6401.92.60, HTSUS. The rationale for this position was that the boots had the essential character of waterproof footwear because they looked and functioned very much like rubber galoshes or finished rubber boots.

It is our view that the result reached in NYRL 858455 is incorrect. GRI 2(a), HTSUS, which is relevant to the classification of unfinished articles reads as follows:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the
complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of the rule), entered unassembled or disassembled.

We note that these boots in their finished condition will be "otherwise lined" [with tricot and cambric linings] which precludes their classification under subheading 6401.92.60, HTSUS. Therefore, they are properly classifiable under subheading 6401.92.90, HTSUS.

Inasmuch as this ruling is a revocation of NYRL 858455, it is not to be applied retroactively to that ruling and will not therefore, affect past transactions for the importation of merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 858455 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion notify this office and apply for relief from the binding effect of this decision as may be warranted by the circumstances.

HOLDING:

The presence of the non-PVC Texon innersoles in the finished riding boots precludes their classification under subheading 6401.92.60, HTSUS, because they provide support for the boots.

The finished riding boots represented by the sample and the unfinished riding boots which were the subject of NYRL 858455 are classifiable under subheading 6401.92.90, HTSUS.

NYRL 858455 is revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division


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