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HQ 089400

September 4, 1991

CLA-2 CO:R:C:M 089400 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40; 6402.91.50

District Director of Customs
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, PA 19106

RE: Footwear; Womens' Snow Boots; Cuffs; Functional Stitching; Protest Nos. 1101-91-100160, 100161

Dear Sir:

This is our decision on Application for Further Review of Protest Nos. 1101-91-100160 and 1101-91-100161, dated May 2, 1991, concerning your action in classifying and assessing duty on womens' boots under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The "Ripple Skier" style women's boot, the subject of Protest No. 1101-91-100160, measures approximately 11 inches high, with a 9 inch shaft. The boot has a 1-1/4 inch heel on the rubber unit bottom attached to a textured PVC upper. The entire shaft is lined with a dense acrylic fleece lining. There is a sewn-in loop label on the inside approximately 1-3/4 inches from the top back of the shaft. The boot also has a front zipper with an unlined expansion of vinyl.

The three styles of women's boots in Protest No. 1101-91- 100161 are very similar to one another in style. They measure approximately 12-1/2 inches high, with a 10-1/4 inch shaft. They have a 7/8 inch heel on a rubber unit bottom attached to a textured PVC upper. The entire shaft is lined with a dense acrylic fleece lining. There is a sewn-in loop label on the inside approximately 2-1/2 inches from the top back of the shaft. The boot also has two decorative, criss-crossed straps with buckles at the base of the shaft.

The boots are designed to protect the wearer from cold weather. In fact, the boots are insulated with Dupont Dacron 808 Polyester Insulation. One of the tags to the boots claims that "[t]his footwear protects against heat as well as cold." The boots are marketed under "The Cold Remedy Collection".

ISSUE:

What is the proper classification for the subject women's boots under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA 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 merchandise was entered under subheading 6402.91.40, HTSUSA, 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 (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except . . . (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 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.

However, the merchandise was liquidated under subheading 6402.91.50, HTSUSA, 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

Counsel for the protestant argues that the boots are classifiable under subheading 6402.91.40, HTSUSA, because the boots have uppers of which over 90 percent of the external surface area is rubber or plastics. We agree with that position. The boots' upper cannot be cuffed, thereby exposing the fleece- lining and reducing the percentage of surface area of the textured PVC. When the upper is cuffed, the notched edges to the boots do not lay flat. Both of the edges, at the notch, stand up giving a "wing-like" effect. Because of this "wing-like" effect, it is obvious to us that the boots are not meant to be worn cuffed.

However, the analysis does not end here. Footwear that is meant to protect the wearer against the cold is specifically excluded from subheading 6402.91.40, HTSUSA, and is specifically included under subheading 6402.91.50, HTSUSA, save one exception. Under subheading 6402.91.40, HTSUSA, footwear designed for cold weather 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 boots fit under this exception.

In United States 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." In the subject protests, the boots' 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 boots are classifiable under subheading 6402.91.40, HTSUSA.

HOLDING:

The subject womens' boots are classifiable under heading 6402.91.40, HTSUSA. The protest should be granted. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division ?

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