HQ 951232: Protest No. 1101-92-100037; 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 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