Sept 28 CBP Bulletin Modifies Ruling on Wader Tops, Corrects Typo in Another
In the September 28, 2011 issue of the U.S. Customs and Border Protection Bulletin (Vol. 45, No. 40), CBP published a notice on its modification of two rulings and similar treatment regarding the tariff classification of wader tops. CBP also published a notice to correct a typographical error in its proposed revocation of eight rulings regarding hulled pumpkin seeds.
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Modifications Are Effective November 28
These modifications are effective for the listed rulings, as well as any treatment CBP has previously accorded to substantially identical transactions, for merchandise entered or withdrawn from warehouse for consumption on or after November 28, 2011.
| Item: Two types of fishing wader tops. The first is a chest-high fishing wader top that will be bonded to a waterproof rubber boot in the U.S. after importation. It consists of an outer layer of polyester with camouflage print, a polyester knit mesh inner lining, and a polyurethane coated laminate in between. The second item is a hip-high wader top and consists of the upper part of a hip boot comprised of a three-layer fabric leg. It will also be finished upon importation by attaching a rubber boot. |
| New Ruling: HQ H122349 (dated 09/08/11, modified NY N109175, NY N019254) |
| New HTS/Rate: 6406.10.90, 4.5% (Parts of footwear, including uppers whether or not attached to soles other than outer soles) |
| Old HTS/Rate: 6406.99.15, 14.9% (gaiters, leggings and similar articles) |
| Reason: CBP states that the wader tops are incomplete articles that are meant to be attached to boots after importation, not worn under them, and as such, are classifiable in subheading 6406.10.90 as parts2 of footwear. CBP finds the wader tops are provided in this subheading as: (i) they are designed exclusively for attachment to waterproof boots, and therefore are "dedicated solely for use" with the boots; and (ii) they are not a separate and distinct commercial entity as they would not reasonably be worn without the boots. The General Explanatory Notes to Chapter 64 also explain that a footwear's upper is the part of the shoe or boot above the sole. Therefore, there is no limit to the shape or size of the upper. Thus, the wader tops are a part of the uppers of the rubber boots. |
2The courts have developed two tests to determine whether an item may be classified as a "part" of an article. The first test, the Willoughby test, requires that the item is an integral part, without which the article, to which it is to be joined, could not function as such article. The second test, the Pompeo test, requires that to be a part of an article, an imported item be dedicated solely for use with that article. CBP notes that an imported item is not a part if it is a separate and distinct commercial entity.
(See ITT's Online Archives or 08/01/11 news, 11080118, for BP summary of the proposed modification of this ruling.)
Correction of CBP's Proposed Revocation of Rulings on Pumpkin Seeds
CBP has also published a correction to its August 24, 2011 proposed notice to revoke eight rulings concerning the classification of hulled pumpkin seeds. In this notice, CBP inadvertently stated that it intended to revoke four ruling letters "concerning the admissibility of certain knives with spring-assisted opening mechanisms." CBP is now correcting that notice to state that it intends to revoke eight rulings "regarding the classification of hulled pumpkin seeds." (See ITT’s Online Archives 11082516 for summary of the August 24, 2011 proposed revocation notice.)
Written comments on CBP’s corrected notice are due by October 28, 2011.