Fishing boots; Waders; Soles, felt; External surface of sole; HRL 952935 distinguished; DRL 854063 revoked

HQ 953879 April 19, 1993 CLA-2 CO:R:C:M 953879 DFC CATEGORY: Classification TARIFF NO.: 6405.90.90 Anthony Kin Top Line Manufacturing Co. 90 Dayton Ave. Passaic, New Jersey 07055 RE: Fishing boots; Waders; Soles, felt; External surface of sole; HRL 952935 distinguished; DRL 854063 revoked Dear Mr. Kim: In District Ruling Letter (DRL) 854063, dated July 24, 1990, you were advised by our Chicago office that certain rubber hip boots and rubber chest waders with textile felt soles are classifiable under subheading 6401.91.00, Harmonized Tariff Schedule of the United States (HTSUS), as waterproof footwear with outer soles and uppers of rubber or plastics, other footwear covering the knee, other. Based on a review of the matter, we are now of the opinion that classification of the waders under subheading 6401.91.00, HTSUS, was in error. Our decision is set forth below. FACTS: The samples submitted were item no. 7101, described as vulcanized rubber hip boots and item no. 7104, described as vulcanized rubber chest waders. Item no. 7101 is a boot with an outer sole and upper of rubber. It extends upwards to about the wearer's hip. A textile felt sole is attached to the bottom of the rubber sole by means of adhesive. Item no.7104 is a rubber chest wader, that is, a single unit consisting of two boots, leggings and upper portion which would cover the wearer's body from mid-chest to toe. It, too, has rubber outer soles with textile felt soles attached to the bottom of the rubber sole by means of 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. ISSUE: What is the constituent material of the outer soles? -2- 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: * * * * 6405.90 Other: 6405.90.90 Other . . . . . . . . . . . . . . 12.5% Legal note (LN) 4(b) to Chapter 64, HTSUS, provides as follows: 4. Subject to note 3 to this chapter: (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. In Headquarters Ruling Letter (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. -3- 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(b) to Chapter 64, supra, classification of the waders under subheading 6401.90.00 is precluded because the greatest surface area of the soles in contact with the ground is wool felt. HOLDING: The chest and hip waders are classifiable under subheading 6405.90.90, HTSUS. DRL 854063 is revoked. Sincerely, John Durant, Director Commercial Rulings Division