HQ 953404

April 19, 1993

CLA-2 CO:R:C:M 953404 DFC

CATEGORY: Classification

TARIFF NO.: 6405.20.90

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