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HQ 955210




March 18, 1994

CLA-2 CO:R:C:M 955210 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.50

District Director of Customs
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

RE: Protest 0901-93-100492; Footwear, protective; Functional stitching; U.S. v. Endicott Johnson Corp.; Waterproof; HRL's 088120, 080791, 084308, 083927

Dear Sir:

This is in response to the Protest 0901-93-100492, covering shipments of women's boots manufactured in China. A sample boot was submitted for examination.

FACTS:

The sample boot, designated as style "Merci," is a woman's over-the-ankle, lace-up boot with a unit molded plastic sole and a plastic upper. The upper consists of four separate pieces of plastic: a wrap-around piece which comprises all of the vamp and quarter, a medial side back piece, a collar, and a bellows-type tongue. The tongue and the collar are attached to the two main pieces by seams which are visible and not backed by any form of tape. The two main pieces are attached to each other by two seams: one on the medial side of the upper which is invisible and is backed by a cemented textile tape which is, in turn, backed by a cemented textile liner, and one in the middle of the heel which is also invisible and is backed by a cemented plastic tape. The entire upper is lined by a textile material which is cemented to all of its inner surface. There is an additional thermal liner of a plaid textile material-foam-tricot sandwich. A paper tag attached to the boot informs in both English and French that the boot is "weatherproof" and that it is conceived ". . . to combat the harsh winter storms of rain, snow and ice . . . . "

The entries covering style "Merci" were liquidated on December 4, 1992, 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 March 2, 1993.

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

ISSUE:

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 a 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 . . .

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 3 cm 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.

We agree with the protestant that there is no molded construction from a point 3 cm above the top of the outer sole.

Protestant contends that the uppers on the footwear in issue are made entirely of non-molded construction formed by sewing the parts together. He states that a review of the sample clearly shows that the upper has various parts which are connected by stitching. Further, the presence of tape used inside the footwear to cover some of the seams is acknowledged, but it is claimed that Headquarters Ruling Letter (HRL) 088120 dated January 14, 1991, indicated that the mere presence of such tape does not preclude a finding that the upper is formed by sewing the parts together.

We do not agree with protestant on the second exception because of the tape which serves to help hold the shoe together in two areas. The stitches on the instep seam and the heel seam of one Merci boot have been cut, and although the seams at the heel and instep are no longer held together by stitching, these seams remain in place. See HRL 080791 dated December 2, 1987, HRL 084308 dated August 14, 1990, and HRL 083927 dated June 13, 1989. There is no doubt that the boot is not as sturdy after the stitches are removed from these seams as illustrated by a Technical Report dated December, 1992, prepared by TSL Environmental Laboratories {Protest Exhibit D] and laboratory Report #94-J51-F0039 dated March 1, 1994, prepared by Ortech Corporation and submitted to this office on March 4, 1994. However, Customs does not utilize a test of strength or durability regarding the matter of exposed functional stitching. The backing of the seams with tape constitutes a method of construction that is not "entirely of non-molded construction formed by sewing the parts together . . . ." HRL 088120 is not controlling here because the tape which covered the inside of the seam in that case did not provide any reinforcement to the stitching whereas here the tape reinforces the stitching.

In the case of U.S. v. Endicott Johnson Corp., 67 CCPA 47, C.A.D. 1242, (1980), involving the classification of canvas shoe uppers, the court described "functional" stitching as "[s]titching that serves a significant purpose with respect to character, construction and manufacture, such as strengthening the material, enabling the manufacture to produce the product more efficiently or cheaper, or producing a better products 'functional' and not merely ornamental."

Protestant claims that the stitching on the "Merci" style is functional noting that it actually connects the pieces of the upper, serves to strengthen the uppers and enables a better product to be produced. Further, the stitching is "exposed" because it is clearly visible to the naked eye when viewing the sample.

We do not agree with protestant that the back seam and the side seam have functional stitching which is exposed. The stitching of the two seams is not exposed because they were sewn with the two pieces that they attach turned inside out. In other words, while the seams may be visible, the functional stitching which makes them is hidden, thus not "exposed." However, there is exposed a substantial portion of functional stitching which attaches the collar and tongue.

We do not believe that Chicago Customs Ruling Letter (DD) 888116 dated August 2, 1993, cited by the protestant has any bearing on the shoe in issue because the shoe in that ruling probably did not have tapes cemented over the inside of the seams. In fact, protestant's counsel admits that the ruling request letter submitted in that case expressly stated that no adhesive fabric tape would be used in the two styles in issue. Additionally, we do not believe that protestant's laboratory report stating that style "Merci" is not waterproof has any bearing on whether or not it is protective. Footwear need not be waterproof to be classified under subheading 6402.91.50, HTSUS. Certainly, style "Merci" is designed to be a protection against cold or inclement weather.

Inasmuch as style "Merci" does not meet the second exception to the protective exclusion when it needs to meet all three, it is classifiable under subheading 6402.91.50, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, 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.

HOLDING:

Style "Merci" is dutiable at the rate of 37.5% ad valorem under subheading 6402.91.50, HTSUS.

The protest should be denied. 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

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