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HQ 086887

June 12, 1990

CLA-2 CO:R:C:G 086887 ALS


TARIFF NO.: 6401.91.0000

District Director of Customs
701 San Jacinto
P.O. Box 52790
Houston, Texas 77052

RE: Request for Further Review of Protest 5301-9-000332, Dated June 1, 1989, Concerning Chest Waders

Dear Ms. McCauley:

This ruling is on the protest that was filed against your decision in the liquidations on March 3 and 31, 1989, on Entry Nos. 887-0607552-5 of January 25, 1989 and 887-0608163 of March 3, 1989.


The merchandise under consideration is insulated chest waders made of waterproof vulcanized rubber with a drawstring top closure. They are packaged and sold in shoe sizes ranging from shoe size 7 through size 13. The boot portion of the waders has a semi-hard toe, a steel shank and a calendered sole and heel. The waders also have a reinforced crotch, suspender buttons, an inside hanging pocket and a chafing guard.


The subject merchandise was classified under the provision for waterproof footwear with outer soles and uppers of rubber or plastics covering the knee, in subheading 6401.91.0000, Harmonized Tariff Schedule of the United States (HTSUS). The protestant claims that the merchandise is "more than" footwear under Chapter 64, HTSUS, and should, therefore, be classified under subheading 4015.90.00, HTSUS, as "other articles of apparel - 2 -
of vulcanized rubbers." The protestant references United China and Glass v. U.S., 61 Cust. Ct. 386, 293 F. Supp. 734 (1968) and New York Ruling 830802 of July 13, 1988, in support of its position. In regard thereto the protestant claims that the essential character of the merchandise is imparted by the fact that its midchest level transcends the description of footwear.

In a supplemental submission counsel for the protestant argues that chest waders are not footwear but are either wearing apparel or something more than wearing apparel. He references the Explanatory Notes to Chapter 64, HTSUS, which speak of thigh high boots, New York Ruling Letter (NYRL) 830802 of July 13, 1988, which covers stocking waders and Headquarters Ruling Letter (HRL) 080674 of July 28, 1987, covering infant nightwear, in support of the claim that the chest waders should be classified as wearing appearing. Counsel states that the adoption of the Explanatory Notes shows a Congressional intent to discontinue the classification of chest waders as footwear. Counsel also references Headquarters Ruling 040509 of April 13, 1976, regarding fire fighting protective clothing and the case of Antonio Pompeo v. U.S., 40 Cust. Ct. 362 (1958), in support of his alternative claim that the chest waders are more than wearing apparel. Counsel concludes that chest waders should be classified as either wearing apparel of vulcanized rubber or articles of vulcanized rubber under either subheading 4015.90.00 or 4016.99.50, respectively.


Customs has ruled in HRL 081746, dated December 1, 1988, HRL 085057, dated October 12, 1989, and HRL 085919, dated February 21, 1990, that waders, which consists of articles which look somewhat like oversized pants permanently attached to boots are considered footwear. The height of the article did not alter this conclusion. These decisions are consistent with the manner in which this type of merchandise has been considered by the industry. In the instant case it is noted that the various commercial papers, e.g. invoice, packing list, bill of lading, submitted with the entries being protested, refer to the articles as footwear. We note that chest waders look like extended boots and are, in fact, sold by shoe size as evidenced by the importers own advertising literature and literature of other importers and retailers.

We believe it is clear from the historical treatment of waders, the commercial documentation submitted with the entries in question and other commercial documentation, that the articles - 3 -
are footwear. We note that the court in Nomura (America) Corp. v U.S., 62 Cust. Ct. 524, 435 F. 2d 1319 (1969), held that waders made of rubber with attached rubber leggings rising to a high waist or chest level, sold by shoe size and described in the trade and lexicographic authorities as boots are footwear.

In applying GRI 1, we note that the subheading under which the waders were classified, subheading 6401.91.0000, HTSUS, speaks of footwear that covers the knee. Neither the subheading, which covers waterproof footwear covering the knee, nor the relative Explanatory Notes, which reference hip boots, limit the height of the footwear that may be classified thereunder. The salient point is that they cover the knee and not how much more of the body they cover. We believe that it is reasonable to conclude that the Harmonized System Committee did not intend to limit the height of articles classified thereunder since the subheading provides no such limit. This is to be contrasted with the very next subheading, 6401.92, HTSUS, which references both minimum and maximum height.

We do not agree with the protestant that it is necessary to go beyond the clear language of the aforementioned subheadings. Even if we were to, however, accept the protestant's argument that it is necessary to consider the essential character of the article, we could not agree that the essential character of the subject article is that it extends to the midchest level. We note that the court in Nomura, Supra, found that the primary purpose of waders was to protect the foot and leg and, secondarily, to protect the area above the waist. The court noted that they performed essentially the same function as boots.

Further, in regard to the articles covered by NYRL 830802 referenced by the protestant, the articles covered by that ruling are not the same as the articles covered by the entries being protested. The article in that ruling had an unsized foot portion, which appeared pod-like, it was seamed in the middle and was designed to be worn in a boot. Such articles, which appear to be similar to the vinyl stocking foot waders shown in the importer's advertising literature, are sold by sizes normally akin to clothing sizes.

We also do not agree with counsel that the Explanatory Notes to Chapter 64, HTSUS, demand a different classification of the subject product or that they indicate that Congress intended that chest waders should be classified as something other than - 4 -
footwear. While the aforementioned Explanatory Notes indicate that a variety of items listed thereunder are footwear, it does not exclude other products from being included under the footwear classification. We believe the items listed in the Explanatory Notes are merely illustrative of the products included thereunder. In this regard we note that the first paragraph under the General portion of such Notes specifically states that Chapter 64 covers various types of footwear, irrespective of their shape and size, the particular use for which they are designed, their method of manufacture or the materials of which they are made. The first sentence of such General paragraph calls attention to certain exceptions to the aforementioned footwear definition. Chest waders are not listed among such exceptions.

In regard to the Congressional intent at the time the HTSUS was adopted, we see no indication of an expressed Congressional intent to alter prior classification procedure regarding chest waders. In fact, documentation developed in connection with the adoption of the HTSUS tends to indicate a contrary intent. For example, in U.S. International Trade Commission Publication 2051 of January 1988, which deals with the conversion from the Tariff Schedules of the U.S. to the Harmonized Tariff Schedule of the U.S., it is noted that products previously classified in item 700.50 and other items in Part 1, Subpart A of Schedule 7, TSUS, were to be classified in Chapter 64 of the HTSUS. While that cross-reference was not to be used to determine legally appropriate tariff classifications under the HTSUS, we believe that it does generally support the conclusion that items that were considered footwear under the TSUSA were to be so considered footwear under the HTSUSA.

In addition, the Explanatory Notes cannot be considered as an expression of Congressional intent. While they represent the considered view of the classification experts from the various members countries of the Customs Cooperation Council, including the United States, they do not have a statutory basis and are not part of the legal system.

In considering the consistent classification of chest waders as footwear over at least the last 20 years, the conclusion expressed in the Nomura case, Supra, and the lack of an expressed Congressional intent to the contrary, we believe that it is clear that the product should be considered to be footwear. Acordingly, we do not believe it is necessary to refer to the classification of other unrelated products.

In light of the above, we conclude that chest waders are to be considered footwear for tariff purposes. They, therefore, are covered by Chapter 64, HTSUS, and are not covered by Chapter 40, HTSUS, as claimed by the protestant, pursuant to Note 2(b) of that Chapter.


The articles under consideration are properly classifiable in Chapter 64, HTSUS, under subheading 6401.91.0000. Accordingly, the protest should be denied and a copy of this ruling should be attached to the Form 19 Notice of Action furnished to the protestant.


John Durant, Director

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