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HQ 959494




September 27, 1996
CLA-2 RR:TC:TE 959494 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.19.90

John Bercaw
Black Diamond Equipment, Ltd.
2084 East 3900 South
Salt Lake City, UT 84124

RE: Request for reconsideration of NY A82723; heading 6402, HTSUS; shoe provides significantly more protection against water than shoes of that type

Dear Mr. Bercaw:

This is in response to your letter, dated June 10, 1996, requesting reconsideration of New York Ruling Letter (NY) A82723, dated May 7, 1996, regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of an ice-climbing boot. A sample of the boot and a copy of the current edition of the Black Diamond catalogue were submitted to this office for examination.

FACTS:

The subject merchandise, the "Inverno", is an ice-climbing boot composed of two main parts- an outer boot and an inner boot. The outer boot weighs approximately 4 pounds and 1 ounce and is made of 100 percent plastic with a rubber lugged sole. It features metal eyelets and a cuff, which is also made of plastic, and is riveted to the outer boot. The inner boot weighs approximately 1 pound and 7 ounces and is made of foam, nylon fabric, rubber, plastic and vinyl. It has metal eyelets and a thin compressed foam inner sole. The purpose of this inner boot is to hold the foot secure, cushion the foot and keep the foot warm.

You state in your submission that the boot is not "waterproof" and that the boot is designed for ice-climbing and mountaineering. In addition, the boot has specially designed "welts" to hold crampons in place; particularly, the toe welt of the boot is pronounced and "in-cut" to give a secure attachment zone for the crampon bails. The heel has a ledge to accommodate the attachment of crampon heel levers and the sole is lugged to allow the wearer to hike comfortably on rocky or mountainous terrain when opting to remove the crampons.

In NY A82723, the subject boot was classified in subheading 6402.19.90, HTSUSA, in the provision for protective footwear. You disagree with this determination. In your opinion the subject boot is properly classified in subheading 6402.19.15, HTSUSA, which provides for sports footwear (other than ski-boots, cross-country ski footwear and snowboard boots) having 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 chapter 64) is rubber or plastics. You claim that this particular boot is purchased for its performance characteristics as a climbing boot and not for any "protective" purposes.

ISSUE:

Whether the subject boot is properly classifiable in heading 6401, HTSUS, as waterproof footwear, or in subheading 6402.19.15, HTSUSA, as non-protective sports footwear, or subheading 6402.19.90, HTSUSA, as protective sports footwear?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

There are three plausible classifications for the subject boot, heading 6401, HTSUS, subheading 6402.19.15, HTSUSA, and subheading 6402.19.90, HTSUSA. Heading 6401, HTSUS, provides for 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. As the subject boot consists of an outer boot which has a plastic cuff assembled to the boot by riveting, it is precluded by its construction from classification in heading 6401, HTSUS, as waterproof footwear.

Subheading 6402.19.15, HTSUSA, provides for "other footwear with outer soles and uppers of rubber or plastics: sports footwear: other: having 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 rubber or plastics (except footwear having foxing or foxing-like band applied or molded at the sole and overlapping the upper and except 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): other". Thus, as per the terms of this subheading, in order for footwear to be classifiable in this provision, each of the requisite criteria must be met:

1. outer soles and uppers of rubber or plastics; 2. sports footwear;
3. having 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 rubber or plastics;

EXCEPT:

4. footwear having foxing or foxing-like band applied or molded at the sole and overlapping the upper;
5. 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.

Although the subject boot meets the criteria for the subheading and is not excepted by the fourth condition as stated above, it is excepted by the fifth condition. Thus, the subject boot has an outersole and upper of rubber or plastics, it qualifies as sports footwear (intended for the sport of mountain climbing), it has an upper of which 90 percent of the external surface area (including accessories or reinforcements such as those mentioned in note 4(a) to chapter 64, namely ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments) is rubber or plastics, and it does not feature foxing or foxing-like band applied or molded at the sole and overlapping the upper. However, the subject boot is excluded by the terms of subheading 6402.19, HTSUSA, that is, the footwear is designed to be worn over, or in lieu of other footwear as protection against water or cold or inclement weather.

You repeatedly state in your submission that the subject boot is not waterproof. We do not dispute this claim; as already stipulated in the analysis above, this boot is excluded from classification in heading 6401, HTSUS, as waterproof footwear because of its construction. However, this does not exclude the fact that this boot offers protection against water- the two terms are not mutually exclusive. Thus, while not meeting the tariff definition for waterproof footwear, the molded outer shell offers considerably more protection against water than ordinary climbing boots. It is the opinion of this office that the molded outershell offers protection against water above three inches and will keep the wearer's foot dry if lingering in water up to that depth. Furthermore, the construction of the shoe with the combined inner and outer boot also provides protection against cold and inclement weather. Accordingly, the subject boot is not classifiable in subheading 6402.19.15, HTSUSA.

Subheading 6402.19.90, HTSUSA, provides for, among other things, footwear with outer soles and uppers of rubber or plastic, sports footwear (other than ski-boots, cross-country ski footwear and snowboard boots), designed to be worn over, or in lieu of other footwear as protection against water, oil, grease or cold or inclement weather, valued over $12/pair. As the subject boot offers protection against both water and cold or inclement weather, classification in this provision is proper. See also, HQ 956287, dated May 18, 1994, wherein similar merchandise was classified in subheading 6402.19.90, HTSUSA.

Accordingly, it is the opinion of this office that the submitted boot was correctly classified in NY A82723 in subheading 6402.19.90, HTSUSA.

HOLDING:

The submitted ice-climbing boot, the "Inverno", is properly classified in subheading 6402.19.90, HTSUSA, which provides for, other footwear with outer soles and uppers of rubber or plastics: sports footwear: other: other: valued over $12/pair. The applicable rate of duty is 15.6 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota 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 that your client check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels) an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, your client should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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