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HQ 964010




August 29, 2002

CLA-2 RR:CR:TE 964010 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6401.92.90

Mr. John O. Englund
Henry Sherman and Company, Inc.
P.O. Box 2865
Portland, OR 97208

RE: Request for Reconsideration of NY F84808, dated March 24, 2000; Heading 6401; Built-up footwear

Dear Mr. Englund:

This is in reply to your letter of April 12, 2000, stating that you are in disagree-ment with Customs classification of five styles of your company’s boots in New York Ruling Letter (NY) F84808, dated March 24, 2000. In that ruling, Customs classified the boots under subheading 6401.92.90 of the Harmonized Tariff Schedule of the United States (HTSUS), as other waterproof footwear covering the ankle but not covering the knee.

You state that Customs classified the merchandise based on an erroneous construction process of the boots, and that the proper classification is under subheading 6401.99.0000, HTSUS.

The provision you cited does not exist. We assume you intended to cite subheading 6401.99.9000, HTSUS, the residual provision for other waterproof footwear.

FACTS:

In NY F84808, Customs classified the boots in question based on the following information:

You submitted five half pairs of molded waterproof boots, all of which have been assembled by cement bonding and/or vulcanizing processes and have uppers and outer soles of rubber. All five boots are of the slip-on type, without closures and have uppers that will cover the wearer’s ankle
but will not cover the knee. You indicate in your letter that “Style 4920” is a men’s 16” boot, “Style 4915” is a women’s boot, “Style 126B” is a boy’s boot, “Style 126YB” is a youth’s boot, and Styles 124C and 125C are children’s boots that differ only by color.

ISSUE:

Did Customs correctly classify the boots in question under subheading 6401.92.90, HTSUS? If not, what is the correct classification of the boots?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied, in their appropriate order.

Additionally, the Explanatory Notes (EN’s) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The EN’s are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN’s when interpreting the HTSUS.

Classification of the five styles of boots under heading 6401, HTSUS, is undisputed. That heading encompasses “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.”

After examining the boots, the Customs National Import Specialist for this commodity stated in NY F84808, that they were “assembled by cement bonding and/or vulcanizing processes.” You state that the boots are not classifiable under subheading 6401.92.90, HTSUS, because they were “glued together and built up, not moulded.”

The EN to heading 6401, HTSUS, read, in pertinent part, that the heading covers, inter alia, footwear obtained by any of the processes described below:

Assembly by vulcanising

In this process, the raw material (usually rubber or thermoplastics) is prepared with sulphur powder and passed through a press to produce a flat sheet. The sheet is cut (and sometimes calendered) into the shape of the various parts of the outer sole and upper (i.e., vamps, quarters, counters, toe pieces, etc.). The parts are slightly heated to make the material tacky and are then assembled on a last, the shape of which conforms to the shape of the footwear. The assembled footwear is pressed against the last, so that the parts adhere to one another, and then vulcanised. Footwear obtained by this process is known in the trade as “built-up footwear.” Italics added for emphasis.

Bonding and vulcanising

This process is used for moulding and vulcanising an outer sole and heel of rubber on a preassembled upper in one operation. The sole is firmly bonded to the upper with cement which hardens during vulcanisation.

Cementing

In this process, soles which have been previously moulded or cut from a sheet are stuck to the uppers with an adhesive; pressure is applied; and the article is left to dry. Although pressure may be applied at a raised temperature, the material used for the sole is in its final form before the sole is stuck to the upper, and its physical qualities are in no way modified by this operation.

The processes described in the EN are only examples of methods of manufacturing waterproof footwear of heading 6401, HTSUS. You state that the boots are “glued together, and built up, not moulded”, which is akin to the process described as “cementing”, i.e., the soles are stuck to the uppers with an adhesive.

Moreover, the manufacturing processes described in the EN above apply equally to all of the provisions under heading 6401, HTSUS, and classification at the subheading level is not restricted to any particular process. If the boots were, in fact, “glued together, and built up, not moulded” rather than “assembled by cement bonding and/or vulcanizing processes” they would still be classifiable under subheading 6401.92.90, HTSUS.

Finally, we note that subheading 6401.92, HTSUS, specifically describes the boots in question as “Covering the ankle but not covering the knee”, and is more specific than subheading 6401.99, HTSUS, which provides for other [than covering the ankle but not covering the knee] footwear.

HOLDING:

NY F84808 is AFFIRMED. Customs correctly classified the boots in question under subheading 6401.92.90, HTSUS, as “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: Other footwear: Covering the ankle but not covering the knee: Other: Other.” They are dutiable at the general column one rate of duty at 37.5 percent ad valorem.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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