CLA-2 CO:R:C:M 953404 DFC
District Director of Customs
U.S. Customs Service
300 South Ferry St
Terminal Island
Room 2017
San Pedro, CA 90731
RE: Protest 2704-92-101961; Fishing boots; Waders; Soles,
felt; External surface of sole; HRL 952935 distinguished
Dear Sir:
The following is our decision regarding the request for
further review of protest no. 2704-92-101961 which covers a
shipment of fishing boots known as chest and hip waders. Samples
were submitted for examination.
FACTS:
The chest wader and the hip wader have felt soles attached
to rubber/plastic midsoles by an adhesive. The felt soles cannot
be removed without destroying the merchandise. Stream fisherman
routinely use waders with felt soles because felt is not slippery
on wet rocks. Both waders have uppers consisting of PVC lower
portions molded to nylon upper portions. The chest wader has
textile suspenders and a drawstring.
The waders were entered under subheading 6405.90.90,
Harmonized Tariff Schedule of the United States (HTSUS), which
provides for other footwear. The entry was liquidated on March
6, 1992, under subheading 6401.91.00 (HTSUS), which provides for
waterproof footwear with outer soles and uppers of rubber or
plastics, other footwear, covering the knee, other. The protest
was timely filed on May 20, 1992.
-2-
ISSUE:
What is the material of the upper?
What is the constituent material of the outer sole?
LAW AND ANALYSIS:
The competing provisions are as follows:
1. 6401 Waterproof footwear with outer soles and uppers of
rubber or plastics, the uppers of which are
neither fixed to the sole nor assembled by
stitching, riveting, nailing, screwing, plugging
or similar processes:
* * * *
Other footwear:
6401.91.00 Covering the knee . . . . . . . 37.5%
2. 6405 Other footwear
* * * *
6405.20 With uppers of textile materials
* * * *
6405.20.90 Other . . . . . . . . . . . . . . 12.5%
3. 6405 Other footwear:
* * * *
6405.90 Other:
* * * *
6405.90.90 Other . . . . . . . . . . . . . . 12.5%
-3-
Legal note (LN) 4 to Chapter 64, HTSUS, provides as follows:
4. Subject to note 3 to this chapter:
(a) The material of the upper shall be taken to
be the constituent material having the
greatest external surface area, no account
being taken of accessories or reinforcements
such as ankle patches, edging, ornamentation,
buckles, tabs, eyelet stays or similar
attachments;
(b) The constituent material of the outer sole
shall be taken to be the material having the
greatest surface area in contact with the
ground, no account being taken of accessories
or reinforcements such as spikes, bars,
nails, protectors or similar attachments.
Headquarters Ruling Letters (HRL's) 086887 and 081623 dated
June 12, 1990, and May 18, 1989, respectively, are cited as
support for the position that the waders are classifiable under
subheading 6401.91.00, HTSUS, as having rubber soles. Although
the material of the outer soles was not explicitly stated in the
cited rulings, an examination of the files reveals that both the
rubber boot bottoms and the chest waders had rubber soles. New
York Ruling Letter (NYRL) 825194 dated October 9, 1987, is also
cited in support of the same classification. In that ruling it
was stated that the "Hip Waders" were ones in which "the outer
sole's external surface is predominately rubber and/or plastics."
The fact that the cited rulings concerned only footwear with
rubber soles makes them irrelevant to the subject merchandise the
soles of which are felt.
In HRL 952935 dated January 6, 1993, Customs ruled that a
shoe having an outer sole consisting of a layer of wool felt
glued to a mid-sole of rubber affixed to a molded footbed of
composition cork was not considered to have a sole of wool felt
for tariff purposes. The rationale for this position was that
the material of the outer sole which would be in contact with the
ground would be rubber rather than felt. It was noted that the
felt on the bottom of the sole was quite thin and flimsy and
easily removed from the shoe by peeling. Further, the shoe in
its condition as imported was not a commercial reality. It
appeared that the presence of the felt layer is "fugitive" and
that all, or almost all, of the purchasers would remove the felt
if it is present when purchased.
-4-
The felt soles on the instant waders differ from those which
were the subject of HRL 952935 in that they cannot be removed
without destroying the merchandise.
Accordingly, following LN 4 to Chapter 64, supra,
classification under subheading 6401.90.00 is precluded because
the greatest external surface area of the uppers is textile, not
rubber or plastics and the greatest surface area of the soles in
contact with the ground is wool felt.
DRL 854063, issued by the District Director of Customs,
Chicago, on July 24, 1990, held that similar waders with felt
soles are classifiable in subheading 6401.90.00, HTSUS. This
ruling is incorrect and is revoked in HRL 953879 of this date.
HOLDING:
The chest and hip waders are classifiable under subheading
6405.20.90, HTSUS.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you should allow
the protest in full. A copy of this decision should be attached
to the Customs Form 19 and provided to the protestant as part of
the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division