HQ 084834: Decision on Application for Further Review of Protest No. 1001-8-006017

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       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.


















                                         - 2 -


            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












                                         - 3 -


            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.






















                                         - 4 -


                 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
                                       Commercial Rulings Division












































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