HQ 953879: Fishing boots; Waders; Soles, felt; External surface of sole; HRL 952935 distinguished; DRL 854063 revoked

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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