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HQ 955920


June 6 1994

CLA-2 CO:R:C:M 955920 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

District Director of Customs
Suite 244
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Protest 2002-93-001904; Footwear, protective; Functional stitching; HRL's 950403, 950680

Dear District Director:

This is in response to Protest 2002-93-001904, covering a shipment of men's hiking boots produced in China. A sample was submitted for examination. Our decision as to the classification of these hiking boots is also applicable to the identical hiking boots which are the subject of protests 2002-93-001905 and 2002- 93-001907, which you forwarded to this office on February 24, 1994.

FACTS:

The sample, identified as style "Louie," is a man's over- the-ankle, lace-up hiking boot with a plastic/textile upper and a skid resistant rubber sole. This shoe has, and is marketed as having, "Thinsulate" thermal insulation. This boot also features foam padding for fit and comfort, metal hooks and speed lacing, terry quarter lining, soft EVA midsole, and Texon fiberboard for support.

The entry covering style "Louie" was liquidated on September 24, 1993, under subheading 6402.91.50, Harmonized Tariff Schedule of the United States (HTSUS), as protective footwear, with duty at the rate of 37.5% ad valorem. The protest was timely filed on December 7, 1993.

The protestant claims that style "Louie" is properly classifiable under subheading 6402.91.40, HTSUS, as footwear other than protective footwear, with duty at the rate of 6% ad valorem.

ISSUES:

1. Does the boot provide protection against cold weather?

2. Is the upper of the boot 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:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions are as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:

Other Footwear:
6402.91 Covering the ankle:
6402.91.40 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 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 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 . . .

Other:
6402.91.50 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 . . .

ISSUE 1

The U.S. Customs laboratory Report 5-93-21077-001 dated August 8, 1993, states that style "Louie" has thermal insulation for protection against cold weather. Protestant disagrees noting that a private laboratory [Customs Science Services, Inc.] points out that the shoe has only a thin strip of "Thinsulate" insulation on the midsole which does not cover the toes or the sides or top of the foot. The insulation is only on the sole and does not even cover the entire sole. Consequently, the amount of protection afforded against the cold is minimal.

Three of the five rulings cited by counsel for protestant, in support of its position that style "Louie" does not have sufficient insulation to be considered "protective' for tariff purposes, state that the boots in issue therein are designed to be protective from cold or inclement weather. However, in Headquarters Ruling Letter (HRL) 950403 dated December 17, 1991, Customs found that a hiking boot was not protective against the cold because "[a]though there is some foam padding (especially in the rear of the upper) which would provide some protection against cold weather and the rubber foxing would provide some protection against wet conditions, the protection provided is minimal." Also in HRL 950680 dated April 16, 1992, Customs held that a hiking boot, identified as item no. C-57, was not considered protective footwear for tariff purposes because it was basically casual footwear and did not provide any added degree of protection for the foot against water or cold weather.

An examination of sample "Louie" persuades us that unlike the boots that were the subject of HRL's 950403 and 950680, it does provide more than minimal protection against cold or inclement weather. Specifically, in addition to the presence of "Thinsulate" on the midsole, there is foam insulation in the entire tongue and part of the vamp area which covers almost all of the front of the foot. Foam insulation also appears along the sides and topline of the boot. Clearly, the boot is designed to be protective against cold or inclement weather.

ISSUE 2

Protective footwear is precluded from classification under subheading 6402.91.40, HTSUS, unless it satisfies the parenthetical exceptions which are listed as follows:

1. there must be no molded construction from a point 3cm above the top of the outer sole;

2. uppers are entirely of non-molded construction formed by sewing the parts together; and

3. the outer surface of the uppers must contain a substantial portion of exposed functional stitching.

Inasmuch as style "Louie" contains no molded construction within the 3 cm zone, has no functional cementing and has substantial, exposed, functional stitching, it does satisfy the exceptions listed above. Consequently, this style is classifiable under subheading 6402.91.40, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, 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.

HOLDING:

Style "Louie" is dutiable at the rate of 6% ad valorem under subheading 6402.91.40.

The protest should be allowed. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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