Protest No. 1101-92-100037; Footwear; Boots; Cuffs; Functional Stitching; U.S. v. Endicott Johnson Corp.; 6402.91.50

HQ 951232 April 28, 1992 CLA-2 CO:R:C:M 951232 DWS CATEGORY: Classification TARIFF NO.: 6402.91.40 District Director U.S. Customs Service Second and Chestnut Streets Philadelphia, PA 19106 RE: Protest No. 1101-92-100037; Footwear; Boots; Cuffs; Functional Stitching; U.S. v. Endicott Johnson Corp.; 6402.91.50 Dear Sir: This is our response on Application for Further Review of Protest No. 1101-92-100037, dated January 16, 1992, concerning your action in classifying and assessing duty on boots under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise consists of boots, model numbers 59511, 59512, 59513. All three styles of the boot can be worn by both men and women. Both the sole and the upper of the boot are made of polyurethane. The upper consists of parts sewn together, much of the stitching exposed on the upper's external surface. The inside of the boot is lined with cushioned fleece socks. A velcro fastener tightens the top portion of the boot. The shaft of the boot's upper is 8 and 1/2 inches long and the heel measures 1 inch in length. The country of origin label is sewn into the inside back seam within an inch from the top of the boot. The shaft is elasticized within an inch and 1/2 from the top of the boot. Based upon the construction of the boot, it is to be used as a protectant. ISSUE: Whether the top portion of the boot is cuffable, exposing part of the cushioned fleece sock lining and leaving the external surface area of the upper less than 90 percent plastic? LAW AND ANALYSIS: Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Based upon pre-classification ruling letter 865662, dated September 10, 1991, the merchandise was entered under subheading 6402.91.50, HTSUS, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [o]ther: [f]ootwear 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." However, the importer claims that the merchandise is classifiable under subheading 6402.91.40, HTSUS, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [c]overing the ankle: [h]aving uppers of which over 90 percent of the external surface area is rubber or plastics . . . . 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 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 importer argues that the boot is classifiable under subheading 6402.91.40, HTSUS, because the boot has an upper of which over 90 percent of the external surface area is rubber or plastics. We agree with that position. The boot's upper cannot be cuffed, thereby exposing the fleece lining and reducing the percentage of surface area of the polyurethane. If the boot is cuffed, then the country of origin label would be visible. It has been demonstrated that the label cannot be removed without causing damage to the fleece lining. Also, the existence of the elasticized shaft and the velcro fastener impedes one's ability to cuff the boot. Therefore, based upon the construction of the boot, it is obvious to us that the it is not meant to be worn cuffed. However, the analysis does not end here. Footwear that is meant to protect the wearer against "water, oil, grease or chemicals or cold or inclement weather" is specifically excluded from subheading 6402.91.40, HTSUS, and is specifically included under subheading 6402.91.50, HTSUS, save one exception. Under subheading 6402.91.40, HTSUS, footwear designed as a protectant is excluded except for 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 outer surface a substantial portion of functional stitching." The subject boot fits under this exception. In U.S. v. Endicott Johnson Corp., 67 CCPA 47, C.A.D. 1242, 617 F.2d 278, 279 (1980), concerning the classification of canvas shoe uppers, the court held that "[s]titching that serves a significant purpose with respect to character, construction and manufacture, such as strengthening the material, enabling the manufacturer to produce the product more efficiently or cheaper, or producing a better product, is 'functional' and not merely ornamental." The subject boot's upper is of non-molded construction at a point 3 cm above the outer sole, and the upper is constructed through the use of visible, functional stitching. The stitching holds the parts of the upper together. Therefore, the boot is classifiable under subheading 6402.91.40, HTSUS. HOLDING: The subject boots are classifiable under heading 6402.91.40, HTSUS. The protest should be granted. 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. Sincerely, John Durant, Director Commercial Rulings Division