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HQ 961287




July 22, 1998

CLA-2 RR:CR:TE 961287 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.9030

Mr. G.S. Middleton
Assistant Manager, Customs & Trade
L.L. Bean, Inc.
Freeport, Maine 04033

RE: Classification of an approach wading shoe; heading 6404; textile upper; dynapel; synthetic leather

Dear Mr. Middleton:

This is in reply to your letters of November 12, 1997 and November 18, 1997, requesting a ruling on the classification of an "Approach Wading Shoe" number BG30.

You submitted a sample of the left shoe to aid us in our determination.

FACTS:

The sample shoe has a rubber bottom/sole. The upper is a combination of synthetic leather, commercially known as "Dynapel Hoosier" and woven nylon. The shoe has two small perforated grommets on the instep which allow water to pass freely between the inside and outside.

The shoes are intended to be worn by fly fisherman primarily for wading in streams and rivers and are valued at greater than $12 per pair.

Dynapel hoosier is made of nylon fibers interlaced similarly to natural fibers and has polyurethane in the substrate for strength and abrasion resistance. You describe the further manufacturing of that material as follows:

The textile is cut into sheets sized to accommodate tanning machinery drums. During the "wet phase" of coloring some acrylics are added to the drums with the sheets. This acrylic coats/surrounds the nylon fibers in the substrate (as opposed to coating the surface of the material). This process is done to make the substrate material more water resistant and breathable, which is also done in some cases with natural leather to achieve the same results. The strands of nylon giving the suede appearance are still pronounced.

During the next phase water is removed by vacuuming through a flat screen press. The press portion of this process flattens to some extent the nylon fibers making them inconsistent in length. After drying, a "finish" is added to the surface of the substrate. This finish consists of acrylic and some unspecified binding materials which as a whole constitute approximately 1% of the material at the time they are added. The purpose of this finish is only to firm-up the nylon fibers which are now of inconsistent length due to the aforementioned drying process. The fibers need to be firm in preparation for the last process, buffing.

The buffing process, however, removes nearly all of the acrylics and binders added as the "finish"such that less than 1% of their original amount remains. The inconsistent fiber lengths are "cut" during buffing to a uniform surface. After this buffing, there are no significant"plastics" on the external surface; certainly none which can be seen with the naked eye.

You contend that the shoe is classifiable under subheading 6404.19.9030 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

ISSUE:

Whether the approach wading shoe is classifiable in heading 6404, HTSUSA, as footwear with outer soles of rubber or plastics and uppers of textile materials?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. Heading 6404, HTSUSA, encompasses, in part, footwear with outer soles of rubber and uppers of textile materials, valued over $12 per pair.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Among other merchandise, chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. Concerning the composition of materials which form footwear, note 3(a) to chapter 64 reads:

(a) the terms "rubber" and "plastics" include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color;

With respect to uppers which consist of two or more materials, like the shoe in this case, note 4(a) to chapter 64 states that:

(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;

The EN to chapter 64, HTSUSA, indicate that the constituent material of the outer sole and of the upper determines classification in headings 6401 to 6405. In this case, the outer sole of the wading shoe is constructed of rubber and the upper is constructed of dynapel hoosier (synthetic leather) and woven nylon.

In Headquarters Ruling Letter (HQ) 083633, dated May 1, 1989, Customs was confronted with the classification of a child's lammy suede slip-on dress pump. The upper of that shoe was constructed of plastic with a lammy suede material approximately 1¬ inches wide and 4« inches long. An examination of the lammy suede material revealed that none of the fibers of the underlying textile fabric protruded through the brushed plastic layer which formed the eternal surface of the upper. We held that "[b]ecause none of the fibers of the lammy suede strip protrude through the plastic surface coating, the lammy suede in this case is considered to be a plastic material for purposes of classification."

The dynapel hoosier material in this case has significant amounts of textile fibers that are exposed to the surface and only trace elements of plastics, or residue left after brushing are present. Using the rationale in HQ 083633, we find that the fibers of the dynapel hoosier material protrude through the plastic surface coating and the shoe is, therefore, classifiable under subheading 6404.19.9030, HTSUSA, as men's footwear with outer soles of rubber or plastics and uppers of textile materials, valued over $12 per pair.

HOLDING:

The Approach Wading Shoe, number BG30, is classifiable under subheading 6404.19.9030, HTSUSA, which provides for men's footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, valued over $12 per pair. They are dutiable at the general column one rate at 11.2 percent ad valorem.
Sincerely,

John Durant, Director
Commercial Rulings Division

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