CLA-2 CO:R:C:M 955210 DFC
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
Commercial Rulings Division