CLA-2 OT:RR:CTF:TCM H122349 TNA
Ms. Moy Chu
Pacific Eagle USA
9707 El Poche Street
S. El Monte, CA 91733
Re: Modification of NY N019254 and NY N109175; Classification of wader tops
Dear Ms. Chu:
This is in response to your request, dated June 25, 2010, filed on behalf of Pacific Eagle Corporation, USA (“Pacific Eagle”) for reconsideration of New York Ruling Letter (“NY”) N109175, dated June 22, 2010, as it pertains to the classification of a “fishing wader top” (i.e., a one-piece water-proof garment used for wading, imported without its corresponding boots) under the Harmonized Tariff Schedule of the United States (HTSUS). In addition, we have reconsidered NY N019254, dated November 9, 2007, which concerns a similar wader top and was also issued to Pacific Eagle, and found both rulings to be partly in error. For the reasons that follow, we hereby modify NY N109175 and NY N019254.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify NY N047346 and NY N061380 was published on July 27, 2011, in Volume 45, Number 31, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The subject merchandise consists of two types of fishing wader tops imported by Pacific Eagle, namely: Style FFSTCH400MX and Style 5HIP800MAX4U. Style FFSTCH400MX, which we addressed in NY N109175, is chest-high and has an outer layer of 100% polyester with camouflage print, a polyester knit mesh inner lining, and a polyurethane (PU) coated laminate in between. It is imported without its corresponding waterproof boots, which are attached to the wader top after importation.
Style 5HIP800MAX4U, which we addressed in NY N019254, is a “men’s hipper” (a hip-high wader top). It consists of a three-layer laminated fabric leg portion with reinforcement in the knee, a finished hem at the top and a buckled strap at the top. It has a label indicating a shoe or boot size. The fabric, which has a camouflage print design on the outer surface, is made from two flat knit nylon fabrics with a layer of expanded neoprene in the center. It is imported without its corresponding waterproof boots, which are attached to the wader top after importation.
In NY N109175 and NY N019254, CBP classified the wader tops at issue in subheading 6406.99.15, HTSUS, as “Parts of footwear (including uppers whether or not attached to soles other than outer soles)… Other: Of other materials: Of textile materials.”
ISSUE:
Whether the subject wader tops are classified in heading 6210, HTSUS, as garments, or in heading 6406, HTSUS, as parts of footwear?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS subheadings under consideration are the following:
6210 Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907:
6210.40 Other men’s or boys’ garments:
Of man-made fibers:
6210.40.50 Other
6406 Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof:
6406.10 Uppers and parts thereof, other than stiffeners:
Other:
Other:
Other:
6406.10.90 Other
Other:
6406.99 Of other materials:
6406.99.15 Of textile materials
In your request for reconsideration, you submit that Style 5HIP800MAX4U and Style 0701DPPSF are similar to the Style 0701DPPSF, which we classified in NY L82802, dated March 24, 2005, under heading 6210 (subheading 6210.40.50), HTSUS, as a garment. However, Style 0701DPPSF can be distinguished from the subject merchandise in that it was a “stocking foot wader” – i.e., a one-piece garment with a neoprene stocking foot at the bottom of each trouser leg. The stockings were glued to the garment at the ankles. Typically, the user wears a pair of boots over stocking-foot waders, like Style 0701DPPSF. In contrast, the styles at issue are incomplete articles that are meant to be attached to boots after importation, not worn under them. As we explain below, CBP has consistently distinguished between stocking-feet waders; boot waders (imported with boots attached); and wader “tops” like the ones at issue.
In Nomura (America) Corp. v. United States, the U.S. Court of Customs and Patent Appeals considered the classification of chest-high boot waders. See Nomura (America) Corp. v. United States, 58 C.C.P.A. 82; 435 F.2d 1319; 1971 CCPA LEXIS 444; C.A.D. 1007. At the trial level, the U.S. Customs Court had examined the dictionary definitions of the terms “shoes,” “boots,” “footwear,” and “wader,” and defined “wader” as “high waterproof boots; hip boots,” or “high waterproof rubber boots for wading.” Nomura (America) Corp. v. United States, 62 Cust. Ct. 524, 527. Accordingly, the Customs Court held that the wader was classified as a boot, under the tariff heading that encompassed “boots, shoes or other footwear, composed primarily of India rubber.” Id. at 532. This analysis was affirmed by the appellate court, and later cases have followed the same analysis. See Nomura (America), 58 C.C.P.A. 82, 85; Academy Broadway Corp. v. United States, 9 C.I.T. 55; 1985 Ct. Intl. Trade LEXIS 1619.
CBP rulings have also consistently adhered to this analysis. As a result, boot waders have been classified as footwear of headings 6401 through 6405, HTSUS. See HQ 086887, dated June 12, 1990; HQ 960756, dated June 29, 1999. Wader tops have been classified in heading 6406, HTSUS, as parts of footwear. See HQ 085057, dated October 12, 1989; NY C84222, dated March 4, 1998. Stocking-foot waders have been classified either in heading 6113, HTSUS, or heading 6210, HTSUS, depending on their constituent materials. See, e.g., NY L89514, dated January 18, 2006; NY C84222; NY L82659, dated March 17, 2005; NY H82045, dated June 13, 2001.
Heading 6406, HTSUS, provides, in pertinent part, for “parts of footwear (including uppers whether or not attached to soles other than outer soles).” The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, (“Bauerhin”) 110 F.3d 774. The first, articulated in United States v. Willoughby Camera Stores, (“Willoughby Camera”) 21 C.C.P.A. 322 (1933) requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby Camera, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo, (“Pompeo”) 43 C.C.P.A. 9 (1955), states that “an imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Id.
Style FFSTCH400MX and Style 5HIP800MAX4U are designed exclusively for attachment to waterproof boots. Once attached, they become boot waders. As such, they are “dedicated solely for use” with the boots. Moreover, the subject wader tops are not a separate and distinct commercial entity. They would not reasonably be worn without the boots, as overalls for example, because they are designed to be large enough to fit over a user’s clothes. Thus, they are classified in heading 6406, HTSUS, as “parts of footwear.”
We now turn to the six-digit HTSUS classification. Subheading 6406.10, HTSUS, provides for “uppers and parts thereof.” The General EN to Chapter 64, paragraph D, explains that a footwear’s upper is “the part of the shoe or boot above the sole.” There is no limit to the shape or size of the upper. Thus, the subject wader tops are part of the uppers of the rubber boots to which they are attached. As a result, Style FFSTCH400MX and Style 5HIP800MAX4U are classified in subheading 6406.10.90, HTSUS, as “Parts of footwear (including uppers whether or not attached to soles other than outer soles)… Uppers and parts thereof, other than stiffeners: Other: Other: Other: Other.” This is consistent with prior CBP rulings. See, e.g., HQ 085057; NY C84222.
HOLDING:
Under the authority of GRI 1, the Style FFSTCH400MX and Style 5HIP800MAX4U wader tops are provided for in heading 6406, HTSUS. More specifically, they are classified under subheading 6406.10.90, HTSUS, which provides for: “Parts of footwear (including uppers whether or not attached to soles other than outer soles)… Uppers and parts thereof, other than stiffeners: Other: Other: Other: Other.” The general, column one duty rate is 4.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N019254, dated November 9, 2007, and NY N109175, dated June 22, 2010, are MODIFIED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division