CLA-2 OT: RR: CTF: TCM H050119 RES
Robert J. Leo
Meeks, Sheppard, Leo & Pillsbury
570 Lexington Avenue, 44th Floor
New York, NY 10022
RE: Modification of New York Ruling N039198, dated October 23, 2008; Revocation of New York Ruling N039199, dated October 23, 2008; Classification of Work Footwear.
Dear Mr. Leo:
This is in response to your letter dated January 21, 2009, on behalf of Sears Holding Corporation (“Sears”) for reconsideration of New York Ruling Letters (“NY”) N039198 and N039199, both issued on October 23, 2008, regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), of certain footwear. The merchandise in these rulings were classified under subheadings 6403.99.6075 and 6403.99.9065, HTSUSA. We have reviewed NY N039198 and NY N039199 and determined that they are incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on August 15, 2012, in Volume 46, Number 34, of the Customs Bulletin. CBP did not receive any comments during the notice period.
FACTS:
In NY N039198, the articles were described as follows:
[S]tyle[s] KM-0112 and 65025 have uppers of 51 percent leather and 49 percent polyurethane (rubber/plastics) material, while style[s] 65029 and 65120 have uppers of 100 percent leather. . . .
The submitted samples of style # KM-0112, 65025 and 65120 are all below-the-ankle, lace up shoes with outer soles of rubber/plastics and uppers of predominantly leather. Style 65029 is a slip-on shoe. Aside from the “slip-resistant” outer sole, this office finds no evidence that the subject footwear is designed specifically for occupations such as agricultural, construction, industrial, public safety or transportation sectors. In this regard, the subject footwear is not “work footwear” as described in the note [Statistical Note 1(a) to Chapter 64, HTSUSA].
Also, style 65025 has a steel toe. CBP classified styles KM-0112, 65025, and 65120 under subheading 6403.99.6075, HTSUSA, as “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or men, youths and boys: [o]ther: [o]ther: [f]or men: [o]ther.”
In NY N039199, the articles were described as follows:
[S]tyle 65005 (men’s) and styles 65131 and 65118 (women’s) have uppers of 51 percent leather and 49 percent polyurethane (rubber/plastics) material. [S]tyle 65021 (men’s) has an upper of 100 percent leather. . . .
* * * * *
For the purposes of this ruling, the submitted samples are all below-the-ankle, lace up shoes with outer soles of rubber/plastics and uppers of predominantly leather. Aside from the “slip-resistant” outer sole, this office finds no evidence that the subject footwear is designed specifically for occupations such as agricultural, construction, industrial, public safety or transportation sectors. In this regard, the subject footwear is not “work footwear” as described in the note [Statistical Note 1(a) to Chapter 64, HTSUSA].
CBP classified styles 65005 and 65021 under subheading 6403.99.6075, HTSUSA, and classified styles 65131 and 65118 under subheading 6403.99.9065, HTSUSA, as “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or other persons: [v]alued over $2.50/pair: [o]ther: [o]ther: [f]or women: [o]ther.”
The seven styles of footwear under reconsideration are the following style numbers: 65005, 65021, 65025, 65118, 65120, 65131, and KM-0112. Style number 65029 in NY N039198 is not at issue in this reconsideration. All of these styles are sold under Sears’s SAFETRAX® brand of footwear. This brand of footwear is generally sold on the Sears and Kmart websites under the “Work & Safety” sections.
Sears claims that all the styles at issue have the characteristics of “work” footwear and should be classified accordingly. As evidence of its claim, Sears has provided product samples, a marketing brochure it sends to businesses, and a customer list on a Compact Disc (“CD”) consisting of companies in the restaurant and food service industry.
ISSUE:
Whether the footwear constitutes work footwear as defined in Statistical Note 1(a) of Chapter 64, HTSUSA.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1 and if the headings and legal notes do not otherwise require, the remaining GRIs may be applied in order.
GRI 6 provides that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 6.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUSA headings under consideration in this case are as follows:
6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather:
* * *
Other Footwear:
* * *
6403.99 . . . . . . . . . . . . . Other:
Other:
Other:
Other:
6403.99.60 . . . . . . . . . . . . . . . . . . . . For men, youths and boys:
6403.99.6025 . . . . . . . . . . . . . . . . . . . . . Work Footwear
Other:
Other:
For men:
6403.99.6075. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other
* * *
For other persons:
6403.99.90 . . . . . . . . . . . . . . . . . . . . . . .Valued over $2.50/pair:
6403.99.9015 . . . . . . . . . . . . . . . . . . . . . . . Work footwear
Other:
* * *
Other:
For Women:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Other
Chapter 64, HTSUSA, Statistical Note 1(a) provides in pertinent part:
1. For the Purposes of this chapter:
The expression “work footwear” encompasses, in addition to footwear having a metal toe-cap, specialized footwear for men or for women that:
has outer soles of rubber or plastics, and
is of a kind designed for use by persons employed in occupations, such as those related to the agricultural, construction, industrial, public safety and transportation sectors, that are not conducive to the use of casual, dress, or similar lightweight footwear, and
has special features to protect against hazards in the workplace (e.g., resistance to chemicals, compression, grease, oil, penetration, slippage, or static-buildup)
Work footwear does not cover:
sports footwear, tennis shoes, basketball shoes, gym shoes, training shoes and the like;
foot designed to be worn over other footwear;
footwear with open toes or open heels; or
footwear, except footwear of heading 6401, of the slip-on type or other footwear that is held to the foot without the use of laces or a combination of laces and hooks or other fasteners
The importer is not disputing the underlying classification of the footwear to the national eight-digit level in subheadings 6403.99.60 and 6403.99.90, HTSUS. Rather, the importer disputes the classification of the footwear articles at the ten-digit level in subheadings 6403.99.6075 and 6403.99.9065, HTSUSA, and claims that the footwear is classified as work footwear under subheadings 6403.99.6025 and 6403.99.9015, HTSUSA. The importer asserts that the footwear meets the definition of work footwear as defined in Statistical Note 1(a) of Chapter 64, HTSUSA. The importer cites as support for its position the following CBP rulings: NY N028675, dated May 30, 2008; NY N028676, dated June 2, 2008; NY N012971, dated July 3, 2007; NY N006180, dated March 1, 2007; and NY N004747, January 4, 2007.
In NY N012971, the merchandise at issue consisted of five styles of footwear with outer soles of rubber or plastics and uppers of leather. The outsoles had a special oil and slip resistant technology. One style had a strap and buckle closure, one a slide fastener, and the remaining three styles had lace-tie closure systems. The importer claimed that the footwear was designed and marketed to be used by people employed in restaurant, public safety, transportation, and other service occupations and provided a restaurant and hospitality work footwear catalogue selling the styles at issue in NY N012971 as support for their claim. Pursuant to Statistical Note 1(a) of Chapter 64, HTSUSA, CBP classified all 5 styles in NY N012971 as work footwear under either subheading 6403.99.6025 or subheading 6403.99.9015, HTSUSA.
In NY N028676 (which involved the same importer as in NY N012971), the merchandise at issue consisted of two styles of footwear with outer soles of rubber or plastics and uppers of leather. The outsoles had a special oil and slip resistant technology. The women’s styles were designed for and marketed to women in the restaurant and other service industries. The men’s styles were designed for and marketed to men in the public safety, transportation, and service sectors. The importer provided a restaurant and hospitality work footwear catalogue selling the styles at issue in NY N028676. Pursuant to Statistical Note 1(a) of Chapter 64, HTSUSA, CBP classified both styles in NY N028676 as work footwear under either subheading 6403.99.6025 or subheading 6403.99.9015, HTSUSA.
In NY N006180, the articles at issue were five styles of footwear with outer soles of rubber or plastics and uppers of leather. The footwear styles had either a lace-up or a hook & loop closure system and all featured a specially designed outer sole described as being oil and slip resistant. The articles were marketed to be used by people employed in the medical and restaurant industries. Pursuant to Statistical Note 1(a) of Chapter 64, HTSUSA, CBP classified all 5 styles in NY N006180 as work footwear under either subheading 6403.99.6025 or subheading 6403.99.9015, HTSUSA.
In NY N006716, dated February 27, 2007, the article at issue was described as a men’s law enforcement work shoe with a heavy duty, oil and slip resistant rubber/plastic sole, and a leather upper that did not cover the ankle. The shoe also had a steel shank, an upper with water proofing protection, EVA plastic filled cutout zones in the heel and forefoot, and a “dual-density” polyurethane midsole for long wearing comfort. The importer provided a work footwear catalogue marketing and selling the article for use by people employed in the law enforcement and/or the public safety industry. Pursuant to Statistical Note 1(a) of Chapter 64, HTSUSA, CBP classified the article as work footwear under subheading 6403.99.6025, HTSUSA.
Three of the above rulings show that CBP has interpreted Statistical Note 1(a) to Chapter 64, HTSUSA, as also covering footwear for persons employed in the food service industry.
In NY N004747, the three articles at issue were of the same SAFETRAX® line of footwear considered in NY N039198 and N039199, but different style numbers. These articles of footwear were described as “low cut work shoes with outer soles of rubber or plastics and uppers of leather” with two of the styles being lace-up shoes and a third described as being a slip-on. The footwear also featured a “specially designed, relatively rigid, outer sole that is described as slip and oil resistant” and the footwear was to be used by employees in food processing plants, restaurants, supermarkets, hospitals, and other industrial sites. Pursuant to Statistical Note 1(a) of Chapter 64, HTSUSA, CBP classified the two lace-up styles as work footwear under subheadings 6403.99.6025, and 6403.99.9015, HTSUSA. The slip-on style was not classified as work footwear.
In regard to the styles at issue here, Sears asserts that they are all designed and marketed to be used by people employed in food processing plants, restaurants, supermarkets, hospitals, other service sector businesses, and other industrial sites. To support their claims, Sears provided sales and marketing literature that is sent to potential customers in the food industry marketing their SAFETRAX® line of footwear for use by employees in the food service and restaurant businesses and a list of customers that use this line of footwear for their employees. The sales and marketing literature is the same as that for the styles classified in NY N004747. All of these customers are major businesses in the food industry sector.
In light of the evidence provided by Sears and an examination of samples of the footwear, these articles meet the requirements enumerated in Statistical Note 1(a) of Chapter 64, HTSUSA, to be considered work footwear. The footwear has outer soles of rubber or plastics, marketing and sales materials substantiate that the footwear was designed for use by food service industry employees, and the footwear has special oil and slip resistance features to protect against slippage and other hazards. In addition, the footwear styles do not have any of the features listed in Statistical Note 1(a) that work footwear does not have.
Furthermore, the finding that the footwear styles at issue here are work footwear based on the evidence provided and on the features of the articles is also congruent with how CBP has classified similar articles in NY N012971, NY N028676, NY N006180, and NY N006716. In addition, the fact that the styles at issue are marketed in the same manner as the similar styles of the SAFETRAX® classified as work footwear in NY N004747 is highly supportive of Sears’s claim that the styles at issue here are classifiable as work footwear.
Therefore, the SAFETRAX® line of footwear styles at issue in NY N039198 and NY N039199 are classifiable as work footwear. Style numbers KM-0112, 65205, 65120, 65005, and 65021 are classified under subheading 6403.99.6025, HTSUSA, as work footwear for men. Style numbers 65131 and 65118 are classified under subheading 6403.99.9015, HTSUSA, as work footwear valued over $2.50/pair.
HOLDING:
By application of GRI 1, GRI 6, and Statistical Note 1(a) of Chapter 64, HTSUSA, the articles with style numbers KM-0112, 65025, 65120, 65005, and 65021 are classified under subheading 6403.99.6025, HTSUSA, as “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or men, youths and boys: [w]ork footwear,” with a 2012 column one rate of duty of 8.5 percent, ad valorem.
By application of GRI 1, GRI 6, and Statistical Note 1(a) of Chapter 64, HTSUSA, the articles with style numbers 65131 and 65118 are classified under subheading 6403.99.9015, HTSUSA, as “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: [o]ther footwear: [o]ther: [o]ther: [o]ther: [o]ther: [f]or other persons: [v]alued over $2.50/pair: [w]ork footwear,” with a 2012 column one rate of duty of 10 percent, ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECTS ON OTHER RULINGS:
NY N039198, dated October 23, 2008, is hereby MODIFIED.
NY N039199, dated October 23, 2008, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division