HQ 951649: Modification of PC 865662; Footwear; Boots; Cuffs; Functional Stitching; U.S. v. Endicott Johnson Corp.; 6402.91.50

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 951649
                         April 28, 1992


CLA-2 CO:R:C:M 951649 DWS

CATEGORY: Classification

TARIFF NO: 6402.91.40

Ms. Mary Keenan
Sears, Roebuck and Co.
Sears Tower
Chicago, IL 60684

RE: Modification of PC 865662; Footwear; Boots; Cuffs;
    Functional Stitching; U.S. v. Endicott Johnson Corp.;
    6402.91.50

Dear Ms. Keenan:

     In pre-classification ruling letter 865662 (PC 865662),
dated September 10, 1991, the District Director of Customs,
Chicago, Illinois, advised the importer, Sears, Roebuck and Co.,
that certain boots, model numbers 59511, 59512, and 59513, are
classifiable under subheading 6402.91.50, Harmonized Tariff
Schedule of the United States (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."  

     These boots were the subject of Protest No. 1101-92-100037,
filed by Sears, Roebuck and Co. on January 16, 1992, with the
District Director of Customs, Philadelphia, Pennsylvania.  This
Protest was forwarded to Customs Headquarters for review.  In 
HQ 951232, it was determined that subheading 6402.91.50, HTSUS,
was not the correct classification of the above noted models of
boots.

FACTS:

     The merchandise consists of boots, model numbers 59511,
59512, 59513.  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
designed to be protective from cold or inclement weather.

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.

     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.  It is our view
that cuffing the boot would cover the velcro strap and conceal
the elasticized stitching, two obvious design features which make
the boot attractive.

     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 subheading
6402.91.40, HTSUS.  The general, column one rate of duty for
footwear classifiable under subheading 6402.91.40, HTSUS, is 6
percent ad valorem.

     This notice to you should be considered a modification of 
PC 865662 under section 177.9(d), Customs Regulations 
[19 CFR 177.9(d)].  It is not to be applied retroactively to PC
865662 [19 CFR 177.9(d)] and will not, therefore, affect past
transactions for the importation of your merchandise under that
ruling.  However, for the purposes of future transactions in
merchandise of this type, PC 865662 will not be valid precedent.

                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division