CLA 2 CO:R:C:G 085057 DFC
H.Z. Bernstein Company, Inc.
One World Trade Center
Suite 1973
New York, New York 10048
RE: Wader tops made in Taiwan, Mexico and The Dominican Republic
Gentlemen:
Your letter dated June 15, 1989, addressed to our New York Office on behalf of Kaysam Corporation of America concerning the tariff classification of certain wading boot "tops," has
been referred to this office for a direct reply to you. Samples were submitted for examination.
FACTS:
The wader "tops" involved designated as styles Master, Adirondack, Sportster and Sportster Camo are made of 100 percent nylon and have a polyvinyl chloride coating
of .014 mils.
Some of the imported articles look somewhat like oversized pants. However, you indicate that they will always be joined to the top of rubber boots (which cover the foot and ankle and directly come in contact with the ground) to make "wading boots", either "chest", "hip", or "thigh" waders depending on their height. We note that the catalog submitted issued in
1985 by the Red Ball Sporting Products Division of Hampshire Manufacturing Corporation shows the "Master" and a "stockingfoot wader" version (which is not classified as footwear). However, we assume that your request concerns only parts of wading boots for the purpose of this reply.
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ISSUE:
What material comprises the external surface area of the "tops"?
LAW AND ANALYSIS:
Explanatory Note A to Chapter 64, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), provides in pertinent part that "/f/ootwear may range from sandals with
uppers consisting simply of adjustable laces or ribbons to thigh boots (the uppers of which cover the leg and thigh, and which may have straps, etc., for fastening the uppers to the
waist for better support). . . ."
It is clear from the above cited note that these wader "tops" are upper parts despite their resemblance to garments and despite the fact that they will cover the legs (and
sometimes part of the trunk) of the wearer while not covering any part of the foot or ankle.
Based upon an examination of the swatches and the information submitted, it is clear that the swatches are essentially made from laminations of a non expanded (non cellular) PVC plastic and a knit, woven, or net fabric made of nylon fibers. The first three of these materials have textile layers that have "4.4 linear yards per pound" while Adirondack has a flimsier and more open work textile layer which has "13 linear yards per pound." In the finished article, the textile material will be the exposed surface for each material.
The Explanatory Notes to Chapter 39, HTSUSA, relating to plastics and textile combinations read in pertinent part as follows:
. . . Otherwise, the classification of
plastics and textile combinations is essen
tially governed by Note 1(h) to Section XI,
Note 3 to Chapter 56 and Note 2 to Chapter 59.
The following products are also covered by
this chapter:
. . .
(c) Textile fabrics,impregnated, coated, covered or laminated with plastics, which cannot, without fracturing be bent manually around a cylinder of a diameter of 7mm, at a
temperature between 15 degrees C and 30 degrees C;
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It is evident that the laminated materials are far more flexible than the test set out above. It is to be noted that the three other descriptions of "plastics" set out in that
note do not apply to this laminate.
Legal Note 3 to Chapter 64, HTSUSA, provides that “[f]or the purposes of this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials."
Legal Note 4(a) to Chapter 64, HTSUSA, reads 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;
It is our observation that the textile layer constitutes the external surface area of the material since that is what is seen and felt on its external surface.
HOLDING:
The sample wader "tops" are classifiable under subheading 6406.10.8040, HTSUSA, as parts of footwear, uppers and parts thereof, other, other, of textile materials, of man made
fibers, with duty at the rate of 9 percent ad valorem. The applicable textile category number
is 669.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your
local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral agreements which are subject to frequent renegotiations and
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changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division