CLA-2 RR:TC:TE 959494 jb
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
Tariff Classification Appeals
Division