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HQ 953404

April 19, 1993

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


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.


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.


What is the material of the upper?

What is the constituent material of the outer sole?


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%

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.

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.


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.


John Durant, Director
Commercial Rulings Division

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