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

Active· CBP ruling HQ 955920· Issued 1994-06-06

Ruling
HQ 955920
Issued
Status
Active
Category
Classification
HS prefixes
6402.91
Tariff numbers
6402.91.40

Ruling text

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  




Source: rulings.cbp.gov — ruling 955920, retrieved 2026-10-12T05:29:12Z, republished verbatim. This digest is informational; only CBP issues binding rulings.

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