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HQ 954251




June 14, 1993

CLA-2 CO:R:C:M 954251 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.20.00; 6406.10.90

RE: Footwear, unfinished; Parts of skin diving boots; HRL 087200 revoked

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

Dear Ms. Williams:

This is in reference to Headquarters Ruling Letter (HRL) 087200, dated August 20, 1990, addressed to you concerning the tariff classification of certain skin diving footwear. Based on a recent further review of the matter, we have determined that classification of the skin diving boots with or without plastic soles under subheadings 6404.19.35 and 6405.20.90, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), respectively, needs to be clarified and modified. Our decision is set forth below.

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% by weight of rubber and 10% 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 Taiwan and are used primarily for skin diving and other water sports.

In the original inquiry of April 17, 1990, you stated that a synthetic sole will be added to some of the articles. In a telephone conversation on May 4, 1993, with Don Cahill of my staff, you stated that only boots with textile bottoms were imported. Rubber soles, if added, were put on after importation. Further, you were contemplating importing these boots with the rubber soles already attached. While these boots can be used without rubber soles being attached, you indicated that up to this time there have been no sales of these skin diving boots without attached rubber bottoms.

ISSUE:

Are the neoprene skin diving boots 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.

In HRL 087200 we determined that the skin diving boots with rubber/plastic soles were classifiable under 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.

However, the presence of zippers [fasteners] on these boots precludes their classification under subheading 6404.19.35, HTSUSA. Consequently, they are correctly classifiable under subheading 6404.19.80, HTSUSA, 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, other, valued over $6.50 but not over $12/pair.

We also held in HRL 087200 that the skin diving boots without plastic soles were classifiable in subheading 6405.20.90, HTSUSA, which provides for other footwear, with uppers of textile materials, other.

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 skin diving boots without attached soles. Very few of these items are sold to consumers as footwear. The overwhelming majority of the skin diving boots are marketed only after attachment of rubber/plastic soles. Therefore, the principal use of the skin diving boots in their condition as imported is as parts of footwear (i.e., unformed uppers) for tariff purposes.

Inasmuch as the skin diving boots imported without plastic soles are parts of footwear, they are not classifiable as other footwear, with uppers of textile materials, other, in subheading 6405.20.90, HTSUSA. They are classifiable under subheading 6406.10.90, 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.

HOLDING:

HRL 087200 dated August 20, 1990, is revoked.

The skin diving boots with rubber/plastic soles are classifiable under subheading 6404.19.80, HTSUSA.

The skin diving boots without rubber/plastic soles 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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