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HQ 953716




June 14, 1993
CLA-2 CO:R:C:M 953716 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.20.00; 6406.10.90

Ms. Dianne Parkinson
Wetless Aqua
206-9780 197B Street
Langley, B.C. Canada, V3A-4P8

RE: Footwear, unfinished; Parts of Scuba boots

Dear Ms. Parkinson:

This is in reference to your letter dated March 1, 1993, to the Area Director of Customs in New York, concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain unfinished footwear and parts thereof.

In New York Ruling Letter 883508 dated March 29, 1993, you were advised that an unfinished neoprene boot/sock produced in Taiwan, to which a plastisol based sole is applied in Canada and then exported to the United States, is classifiable under subheading 6404.19.80, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for footwear with outer soles of rubber or plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, other, other, other, valued over $6.50 but not over $12/pair.

FACTS:

The second part of your March 1, 1993, inquiry relates to unfinished neoprene boot/socks exported directly from Taiwan to the U.S. and plastisol based soles exported separately from Canada to the U.S. Under this scenario, the soles will be attached to the boot/socks in the U.S.

The samples are described as "one unfinished neoprene boot/sock made in Taiwan and one plastisol based sole (made of raw materials formulated in the U.S.A.) manufactured in Canada." The boot/sock is approximately eight inches high and has a stitched together upper of neoprene rubber sandwiched between two layers of nylon. There is a full side zipper closure. The rubber/plastic sole will be attached to the boot/sock after importation. It is assumed that the boot/socks in their
condition as imported will not be packaged for retail sale.

ISSUE:

Are the neoprene boot/socks to which separate rubber/plastic soles will be attached after importation considered footwear or are they considered parts of footwear [unformed uppers] for tariff purposes?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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.

The provisions for footwear in the HTSUSA are use provisions. Westminster Corp. v. United States, 78 Cust. Ct. 22, C.D. 4687 (1977). Additional U.S. Rule of Interpretation 1(a), HTSUSA, reads as follows:

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use[.]

We have ascertained that for all practical purposes there is no market for these neoprene boot/socks without attached soles. Very few of these items are sold to consumers as footwear. The overwhelming majority of the boot/socks are marketed only after attachment of rubber/plastic soles. Therefore, the principal use of the boot/socks in their condition as imported is as parts of footwear.

In view of the foregoing, it is our position that the neoprene boot/socks in their condition as imported are parts of footwear (i.e., unformed uppers) for tariff purposes.

As stated in NYRL 883508, the rubber/plastic soles are classifiable under subheading 6406.20.00, HTSUSA, which provides for outer soles and heels, of rubber or plastics. The applicable rate of duty for this provision is 5.3% ad valorem.

HOLDING:

The rubber/plastic soles are classifiable under subheading 6406.20.00, HTSUSA.

The neoprene boot/socks to which separate rubber/plastic soles will be attached after importation are classifiable under subheading 6406.10.9040, HTSUSA, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton, of man-made fibers. The applicable rate of duty for this provision is 9% ad valorem. The applicable textile category is 669.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category requirements applicable to the subject merchandise may be affected Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels, an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

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

Sincerely,

John Durant, Director
Commercial Rulings Division


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