Decision on Application for Further Review of Protest No. 0401-90-000398

HQ 088120 January 14, 1991 CLA-2 CO:R:C:G 088120 DFC CATEGORY: Classification TARIFF NO.: 6402.91.4045 District Director of Customs Thomas P. O'Neill, Jr Federal Building Boston, MA 02222-1052 RE: Decision on Application for Further Review of Protest No. 0401-90-000398 Dear Sir: This protest was filed against your decision in the liquidation on February 2, 1990, of various entries covering shipments of women's rubber boots with rubber sole produced in Italy. FACTS: The entries involved were liquidated under subheading 6402.91.5060, Harmonized Tariff Schedule of the United Sates Annotated (HTSUSA), as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. The applicable rate of duty is 37.5 percent ad valorem. The protestant maintains that these boots are properly classifiable under subheading 6402.91.4045, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and having exposed on the  -2- outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. The applicable rate of duty is 6 percent ad valorem. ISSUE: Are the uppers of these boots from a point 3 cm above the top of the outer sole entirely of non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching? LAW AND ANALYSIS: The uppers of these boots from a point 3 cm above the top of the outer sole are entirely of non-molded construction. The crucial determination here is whether the back seam is functional stitching. An examination of a sample boot reveals that the tape of the inside of the seam does not hold the back together when the seam is removed. Consequently, we consider the stitching as being functional. HOLDING: The boots are properly classifiable under subheading 6402.91.4045, HTSUSA, as claimed. The protest should be allowed. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant. Sincerely, John Durant, Director Commercial Rulings Division