CLA-2 CO:R:C:G 088120 DFC
District Director of Customs
Thomas P. O'Neill, Jr Federal Building
Boston, MA 02222-1052
RE: Decision on Application for Further Review of Protest
No. 0401-90-000398
Dear Sir:
This protest was filed against your decision in the
liquidation on February 2, 1990, of various entries covering
shipments of women's rubber boots with rubber sole produced
in Italy.
FACTS:
The entries involved were liquidated under subheading
6402.91.5060, Harmonized Tariff Schedule of the United Sates
Annotated (HTSUSA), as other footwear with outer soles and
uppers of rubber or plastics, 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. The applicable rate
of duty is 37.5 percent ad valorem.
The protestant maintains that these boots are properly
classifiable under subheading 6402.91.4045, HTSUSA, as other
footwear with outer soles and uppers of rubber or plastics,
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 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
-2-
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 applicable rate of duty is 6 percent
ad valorem.
ISSUE:
Are the uppers of these boots 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:
The uppers of these boots from a point 3 cm above the top
of the outer sole are entirely of non-molded construction. The
crucial determination here is whether the back seam is
functional stitching. An examination of a sample boot reveals
that the tape of the inside of the seam does not hold the back
together when the seam is removed. Consequently, we consider
the stitching as being functional.
HOLDING:
The boots are properly classifiable under subheading
6402.91.4045, HTSUSA, as claimed.
The protest should be allowed. A copy of this decision
should be attached to the Form 19 Notice of Action to be sent
to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division