Clarification of HQ 964625, dated September 10, 2001; Classification of waterproof hiking footwearDear Mr. Maloney:

HQ 967509 March 3, 2005 CLA-2 RR:CR:TE 967509 KSH CATEGORY: Classification TARIFF NO.: 6404.19.20 Mr. William J. Maloney, Esquire Rode & Qualey 925 Madison Avenue New York, NY 10017 RE: Clarification of HQ 964625, dated September 10, 2001; Classification of waterproof hiking footwear Dear Mr. Maloney: On September 10, 2001, this office issued to you on behalf of your client, Deckers Outdoor Corporation, Headquarters Ruling Letter (HQ) 964625 in which a below the ankle hiking shoe identified as the “Quest” was classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed HQ 964625 and have concluded that the rationale contained therein should be clarified. HQ 964625 correctly determined that the Quest is not “athletic footwear.” The Quest was classified in subheading 6404.19.90, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $12/pair.” We find, however, that the ruling incorrectly stated that “[t]he textile material …is waterproof.” In your original request for a ruling, dated May 25, 2001, you stated, “The upper materials of the subject shoes have also been chosen carefully for the designed use in hiking. Water resistance and durability are important characteristics for hiking footwear and the subject uppers have been designed to meet those needs. The uppers incorporate waterproof microfiber fabrics and plastic. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions used by CBP Import specialists to classify footwear. The footwear definitions were provided merely as guidelines and, although consulted here, are not to be construed as CBP rulings. With regard to "protection," T.D. 93-88 states, in pertinent part:  Footwear is designed to be a "protection" against water, oil or cold or inclement weather only if it is substantially more of a "protection" against those items than the usual shoes of that type. For example, a leather oxford will clearly keep your feet warmer and drier than going barefoot, but they are [sic] not a "protection" in this sense. On the other hand the snow-jogger is the protective version of the non-protective jogging shoe.  In addition, under examples of what is not included as “protective footwear” T.D. 93-88states:2. Hiking boots that are not substantially warmer or more waterproof than ordinary. In protecting the foot from the mud and sharp objects present in all weather, even a non-protective hiking boot will be heavier (thus warmer and more water resistant) than most shoes. Subsequent to the issuance of HQ 964625, a sample of the Quest was obtained. Upon review of the sample, we have concluded that the Quest is not substantially more waterproof than ordinary hiking boots. The utilization of certain "waterproof" pieces of material in the upper does not render the shoe water proof or resistant any more than other hikers.  You have indicated that the waterproof microfiber keeps the shoe looking newer and is easier to clean than other non-waterproof materials.  The entire shoe does not have waterproof features and will not keep the foot any drier than other hikers. The classification of the Quest remains unchanged. In light of the analysis above, it is our position that the Quest is not waterproof. Sincerely, Myles B. Harmon, Director Commercial Rulings Division