HQ 0084834 - Decision on Application for Further Review of Protest No. 1001-8-006017 - United States International Trade Commision Rulings

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HQ 084834

October 18, 1989

CLA-2 CO:R:C:G 084834 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 700.53

Area Director of Customs
Airport Int'l Plaza
Newark, New Jersey 071146

RE: Decision on Application for Further Review of Protest No. 1001-8-006017

Dear Sir:

This protest was filed against your decision in the liquidation of the following entries:

Entry No. And Date Date of liquidation
1750720 1-11-88 5-13-88
1845382 2-29-88 5-13-88
0009922 5-10-88 6-24-88
0009567 4-17-88 5-27-88

FACTS:

The rubber and polyvinyl chloride (PVC) riding boots in issue were liquidated under the provision for other 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, all the foregoing having soles and uppers of which over 90 percent of the exterior surface area is rubber or plastics in item 700.53, Tariff Schedules of the United States (TSUS).

The protestant claims that the PVC riding boots are not primarily designed as protective footwear and are properly classifiable under the provision for other footwear which is over 50 percent by weight of rubber or plastics and having uppers of which over 90 percent of the exterior surface area is rubber or plastics in item 700.56, TSUS.

ISSUE:

Are these riding boots primarily designed as a protection against water or inclement weather?

LAW AND ANALYSIS:

Counsel's arguments in this matter may be summarized as follows:

(a) these boots are designed and used as riding boots, not as protective footwear;

(b) the primary if not the sole reason for the choice of rubber or PVC rather than leather is due to significant cost savings and does not reflect a choice based on the water repellant nature of the materials;

(c) while these boots are waterproof, this necessarily follows as an incident of their composition but is not indicative of design or intended use;

(d) their overall characteristics are that of all-weather riding boots;

(e) they are advertised, displayed and sold as riding boots, not as wet-weather boots; and

(f) they are primarily purchased and used as a substitute for leather riding boots by people who cannot or will not invest the larger sum of money in leather boots.

Headquarters Ruling Letter (HRL) 076391 dated November 27, 1985, has been cited in support of their position. In this case certain nylon and rubber hiking boots were found not to be designed as protective footwear because they were not advertised as such and they did not have design features which would enable one to distinguish them from year-round outdoor shoes.

It is our view that HRL 076391 does not support this position. First, there is no doubt that these riding boots are explicitly advertised as waterproof footwear. For example, the advertising material describes the rubber riding boots as "lined waterproof," "Specially lined, for comfortable wear rain or shine," "Superba Rubber Riding Boots are waterproof and built for hard work," "Rain or shine Medalist PVC boots are real leather look alikes right down to their tapered
legs," "Waterproof and comfortable for year round wear," "Made of waterproof PVC that resembles leather," "completely waterproof," "light in weight and 100 percent waterproof," "100% waterproof. An occasional wipe with a damp cloth will maintain its eye-catching condition," and "100% waterproof and fully lined for comfort."

Further, there is a difference between the instant PVC riding boots and the hiking boots which were the subject of HRL 076391. Those boots as a whole were found not to offer protection against the elements. In this instance there is no doubt that the riding boots are waterproof. The fact that the boots may also be worn in fair weather does not diminish this waterproof characteristic.

Counsel maintains that the primary difference between the leather riding boots and the PVC or rubber riding boots is the cost factor. It is our opinion that cost is not relevant in a determination of whether footwear is designed as protective. It is our observation that the emphasis on the waterproof qualities of the PVC and rubber riding boots in the advertising material submitted shows that the companies who market these boots consider the waterproof characteristics of the boots as a major selling point.

Even if the PVC or rubber riding boots are acceptable substitutes for leather riding boots, it is the waterproof characteristic of the former that constitutes the primary design difference between these boots. One who purchases the rubber or PVC riding boot as a substitute for the leather boot obtains an additional feature viz., waterproofing. Clearly, this design feature which distinguishes the rubber or PVC boot from the leather boot cannot be characterized as incidental.

HOLDING:

The PVC or rubber riding boots are primarily designed as a protection against water and the elements. Classification under item 700.53, TSUS, as liquidated is appropriate.

The protest should be denied. A copy of this decision should be attached to your Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director

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