United States International Trade Commision Rulings And Harmonized Tariff Schedule
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DATE:

FILE: CLA-2-64:S:N:8:346-T
892799

TO: Director, Office of Regulations and Rulings Headquarters, U.S. Customs Service

FROM: Chief, National Import Specialist Division, Branch 8 New York Seaport

SUBJECT: Classification - Diver's shoes - External Surface of Sole-Squiggles

Please note the attached inquiry from Edmundo Turner (ET) for Wenoka Cutlery concerning the classification under the Harmonized Tariff Schedules (HTS) of 2 scuba boots, from China.

The first question is whether these are footwear in 6401- 6405. We believe the rubber "squiggles" make this item suitable enough for separate use and we agree with ET that it is. On other hand, the described use, "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 and diving fins (diver's flippers) are not footwear, as that term is used in the heading to HTS Chapter 64, per note B to the EN for 95.06.

The other question is the material of the outersole. ET indicates that the rubber lines are 50% of its external surface per 4(c) on the Footwear Worksheet. Per your multiple previous decisions, which we disagreed with, the surface in contact with the ground in this soft soled item is the visible surface.

On that basis, the 50% appears to us, by hand-held microscopic examination, if anything, higher than it should be. Even if the 50% is exactly correct, these items should be classified in 6405, not 6404 as proposed by ET, since 6405 (which includes all footwear with predominately textile outersoles) is the latter to appear.

We do note that the fact that this outer sole so obviously looks and performs like a rubber one does makes it odd that Customs
will treat it as textile. We believe the Customs Service's classification of this item is in 6405.20.90 at 12.5%, assuming the fabric in this upper is man-made, not 6404.19.20 as claimed by ET.

We note that 6404.19.20 would still be the wrong classification even if these items were classified in 6404.

Any questions, please call NIS J. Sheridan at 212-466-5889.

Robert Swierupski

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