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HQ 955697


March 11, 1994

CLA-2 CO:R:C:M 955697 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.90

Edmundo Torner, CHB
8025 N.W. 36th Street
Suite 319
Miami, Florida 33166

RE: Footwear; Divers's shoes; External surface of sole; Scuba boots; Squiggle lines

Dear Mr. Torner:

This is in reference to your letter dated November 29, 1993, to the Area Director of Customs in New York, on behalf of Wenoka Cutlery Div of Schur, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of two scuba boots produced in China. Your letter, together with samples of styles 42501 and 42502, has been referred to this office for a response.

FACTS:

The subject merchandise consists of two styles of scuba boots. Style 42501 does not cover the wearer's ankle bone while style 42502 will cover the wearer's ankle bone. Both styles have textile [2mm nylon] uppers and textile soles with rubber "squiggle lines." These boots will be used by divers for protection against chafing while wearing diving fins.

You maintain that both styles of scuba boots are classifiable under subheading 6404.19.20, HTSUS, which provides 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. The applicable rate of duty for this provision is 37.5% ad valorem.

ISSUES:

Whether these "scuba boots" are footwear for tariff purposes.

What is the constituent material of the outer soles having the greatest surface area in contact with the ground?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

ISSUE NO 1

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). The described use of the boots, "by divers for protection against chafing while wearing fins," makes them somewhat like "super-hosiery." However, we note that hosiery is normally worn under footwear. Further, diving fins (divers flippers) are not footwear within the purview of chapter 64, HTSUS, following EN (B)(2) to heading 95.06, at page 1592, which indicates that diver's flippers are covered therein as equipment for other sports or outdoor games. It is our position that the presence of the rubber "squiggle lines" on the soles of the boots for traction (on wet decks) makes them suitable for separate use as footwear.

ISSUE NO 2

Note 4(b) to chapter 64, HTSUS, reads as follows:

4. Subject to note 3 to this chapter:

(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.

Line 4(c) of the Footwear Worksheet indicates that the rubber/plastic "squiggle lines" constitute 50% of the external surface area of the outer soles of both styles of boots. Our examination of the outer soles of the samples persuades us that less than 50% of the external surface area of the outer soles is rubber/plastics. Clearly, the area of textile material between the rubber "squiggle lines" is the material having the greatest surface area in contact with the ground.

In view of the foregoing, it is our position that the scuba boots are classifiable under subheading 6405.20.90, HTSUS, as other footwear with uppers of textile materials, other.

HOLDING:

The scuba boots are considered footwear for tariff purposes.

The constituent material of the scuba boots' outer soles is textile.

The scuba boots are dutiable at the rate of 12.5% ad valorem under subheading 6405.20.90, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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