CLA-2 CO:R:C:M 952304 DFC
Beth C. Brotman, Esq.
Siegel, Mandell & Davidson, P.C.
Counselors at Law
One Astor Plaza
1515 Broadway
43rd Floor
New York, New York 10036
RE: Boots, riding, Footwear, PVC, slush molded; Supported or
lined; Otherwise supported or lined; GRI 2(a); Unfinished
waterproof footwear; NYRL 858455 revoked
Dear Ms. Brotman:
In a letter dated July 23, 1992, on behalf of Miller Harness
Company, Inc., you inquired as to the tariff classification under
the Harmonized Tariff Schedule of the United States (HTSUS), of
certain polyvinyl chloride (PVC) riding boots which will be
produced in France and/or the People's Republic of China. In a
supplemental submission dated November 19, 1992, you presented
additional arguments with relation to the issue as to whether the
riding boots are "otherwise supported." A sample was submitted
for examination.
FACTS:
The sample is a riding boot having PVC uppers and soles,
which will be produced by a slush molded process. You state that
"slush molding is a process in which an entire shoe is formed in
one operation by means of hollow mold and heat applications to
liquid compounds within that mold." The boots extend almost to
the knee, have dressage tops (i.e., the inner side of the boot is
shorter than the outerside), tapered legs, non-slip outer soles,
Texon innersoles (non-PVC) and spur rests.
ISSUE:
Does the presence of Texon innersoles preclude
classification of the riding boots under subheading 6401.92.60,
HTSUS?
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LAW AND ANALYSIS:
You claim that these boots are properly classifiable under
subheading 6401.92.60, 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, having soles
and 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 polyvinyl chloride,
whether or not supported or lined with polyvinyl chloride but not
otherwise supported or lined. The applicable rate of duty for
this provision is 6.6% ad valorem.
In support of this position, you cite New York Ruling Letter
(NYRL) 858455 dated December 11, 1990, regarding the tariff
classification of PVC riding boots which you assert are
substantially similar to the boots in issue. We believe your
reliance on NYRL 858455 is misplaced because the boots which were
the subject of that ruling are different from the boots under
consideration in this ruling request.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS although not dispositive
should be looked to for the proper interpretation of the HTSUS.
See 54 FR 35128 (August 23, 1989). EN (A) to heading 64.06, at
p. 879, reads in pertinent part, as follows:
This heading covers:
(A) The various component parts of footwear: these parts may
be of any materials except asbestos.
Parts of footwear may vary in shape according to the
types or styles of footwear for which they are
intended. They include:
(1) Parts of uppers (e.g., vamps, toecaps, quarters,
legs, linings and clog straps), including pieces
of leather for making footwear cut to the
approximate shape of uppers.
(2) Stiffeners. These may be inserted between the
quarters and linings, or between the toecap and
lining, to give firmness and solidity at these
parts of the footwear.
(3) Inner, middle and outer soles, including half
soles or patins; also in-soles for gluing on the
surface of the inner soles.
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(4) Arch supports or shanks and shank pieces
(generally of wood, leather, fibreboard or
plastics) for incorporation in the sole to form
the curved arch of the footwear.
* * * *
You contend that the above cited EN shows that the drafters
of the HTSUS recognized that "linings," "stiffeners," "inner
soles," and "arch supports" listed above under paragraphs 1
through 4 are separate and distinct footwear components. You
cite technical shoe publications which define "stiffeners" as
adding support to the back part of the shoe and "arch supports"
as additional support to the arch or foot. Further, the
technical literature indicates that innersoles basically provide
breathability absorption [to keep feet cool and comfortable],
flexibility and structural integrity to the shoe.
In view of the above cited EN and definitions provided in
the technical shoe publications, you conclude that:
1. while boots having "stiffeners" and/or "arch supports"
would be "otherwise supported" and thus precluded from
classification under subheading 6401.92.60, HTSUS, the
boots at issue merely contain innersoles which are
separate and distinct from support components i.e.,
"stiffeners" and "arch supports";
2. the primary features of innersoles such as
breathability, absorption, [of particular importance in
a PVC boot] are distinguishable from those of
"stiffeners," "arch supports," and the like; and
3. although innersoles do aid in the retention of the
shape of the shoes, they remain distinguishable from
support components which provide additional firmness/
stiffness to the shoe, beyond that necessary to
maintain the shoe's structural integrity.
We agree that the innersoles of the riding boots are
separate and distinct components from "stiffeners" and "arch
supports." However, this does not mean that they do not provide
support for the shoe. An examination of the sample reveals that
the Texon innersoles used in these riding boots are very rigid
and definitely provide support for the boot (i.e., to maintain
structural integrity). There is no requirement in the tariff
schedule which requires that the term "otherwise supported" be
interpreted to include only footwear components which provide
"additional" support.
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In view of the foregoing, it is our opinion that riding
boots represented by the sample are classifiable 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 not assembled by stitching, riveting, nailing,
screwing, plugging or similar processes, other footwear, covering
the ankle but not covering the knee, other, other. The
applicable rate of duty for this provision is 37.5% ad valorem.
NYRL 858455 dated December 11, 1990, which was addressed to
you concerned the tariff classification of two unfinished riding
boots.
Those boots were described therein as follows:
You submitted two samples both of which are composed of
polyvinyl chloride uppers and soles. You state these
are produced through a slush molded process in France.
The boots extend almost to the knee, have a dressage
top (i.e., the inner side of the boot is shorter than
the outerside), tapered legs, non slip soles and spur
rests. Neither style has a name or number. You state
that these styles will be imported without linings and
with unfinished top edges, as depicted by the submitted
samples. Subsequent to importation, the boots will be
finished by Miller Harness in the United States as
follows: (1) heel counters will be inserted into the
boots; (2) a tricot lining, in the case of one style,
and a cambric lining, in the case of the other style,
will be cut to size, sewn to inner soles and inserted
into the boots; (3) the top edge of the boot
containing the tricot lining will be finished with
stitching, while the top edge of the style with cambric
lining will be finished with leather trim which will be
sewn to the lining and then sewn to the boot.
Based on the foregoing description, New York Customs
concluded that these unfinished boots were classifiable under
subheading 6401.92.60, HTSUS. The rationale for this position
was that the boots had the essential character of waterproof
footwear because they looked and functioned very much like rubber
galoshes or finished rubber boots.
It is our view that the result reached in NYRL 858455 is
incorrect. GRI 2(a), HTSUS, which is relevant to the
classification of unfinished articles reads as follows:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
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complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of the
rule), entered unassembled or disassembled.
We note that these boots in their finished condition will be
"otherwise lined" [with tricot and cambric linings] which
precludes their classification under subheading 6401.92.60,
HTSUS. Therefore, they are properly classifiable under
subheading 6401.92.90, HTSUS.
Inasmuch as this ruling is a revocation of NYRL 858455, it
is not to be applied retroactively to that ruling and will not
therefore, affect past transactions for the importation of
merchandise under that ruling. However, for the purposes of
future transactions in merchandise of this type, NYRL 858455 will
not be valid precedent. We recognize that pending transactions
may be adversely affected by this revocation, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, you may, at your discretion notify this office and apply
for relief from the binding effect of this decision as may be
warranted by the circumstances.
HOLDING:
The presence of the non-PVC Texon innersoles in the finished
riding boots precludes their classification under subheading
6401.92.60, HTSUS, because they provide support for the boots.
The finished riding boots represented by the sample and the
unfinished riding boots which were the subject of NYRL 858455 are
classifiable under subheading 6401.92.90, HTSUS.
NYRL 858455 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division