OT:RR:CTF:FTM H207579 JER
Mr. Dennis Awana
Inter-Orient Services
1455 Monterey Pass Rd # 205
Monterey Park, CA 91754
RE: Revocation of NY N196436; tariff classification of women’s lace front fashion boots with fold down fleece-like lining
Dear Mr. Awana:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N196436, dated December 30, 2011, issued to you on behalf of Inter-Orient Services. In NY N196436, CBP classified the subject women’s lace front fashion boot, style “Helen 04” in subheading 6402.91.40, HTSUS, which provides for: “Footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: In which the upper’s external surface area measures over 90% rubber and/or plastics (including accessories or reinforces) which does not have a foxing-like band; which is not designed to be worn over or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold inclement weather: For women: Other.” It has come to our attention that our decision in NY N196436 was 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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on May 1, 2019, in Volume 53, Number 13, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N196436, the women’s lace front fashion boot, style “Helen 04” was described as having an inner shaft lined with a fleece-like textile material and an outer sole made up of a rubber or plastic material. The decorative portion of the shaft was designed to be exposed when the shaft is cuffed. The boot features metal snap buttons which connect the upper portion of the shaft to the mid quarter of the boot. Once folded down the approximately three (3) inch exposed shaft is secured in place by the metal snap buttons. Additionally, the “Helen 04” boot presents as being slightly above the ankle when the shaft is cuffed down and far below the calf when not cuffed. The boot does not feature any accessories, foxing or foxing-like bands and therefore is not considered to be protective against cold or inclement weather.
ISSUE:
Whether the subject fashion boot has an external surface area composed of over ninety (90) percent rubber or plastic such that is classifiable in subheading 6402.91.40, HTSUS, or whether the external surface area of the upper is composed of more than 10 percent of a textile material such that the merchandise is classifiable in subheading 6402.91.70, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“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 of the tariff schedule 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 then be applied.
The HTSUS provisions under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Other:
6402.91 Covering the ankle:
Other:
6402.91.40 Having uppers of which 90 percent of the external surface area (including any accessories or reinforces such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or foxing-like band applied or molded at the sole and overlapping the upper…[.]
* * *
6402.91 Covering the ankle:
Other:
6402.91.70 Valued over $3 but not over $6.50/pair
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 64.02 states, in pertinent part:
(D)
* * *
If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area. The constituent material of the outer sole shall be taken to be the material having the greatest surface, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or side fasteners. The constituent material of any lining has no effect on classification.
Additionally, Note 4 to Chapter 64 provides, in relevant, part:
4. Subject to note 3 to this chapter:
(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments;
(b) The constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments.
Our decision in NY N196436 incorrectly concluded that the external surface of the upper (“ESAU”) for the “Helen 04” was made up of over 90 percent rubber or plastics. More specifically, NY N196436 incorrectly reasoned that the upper portion of the “Helen 04” was not designed to be cuffed and therefore concluded that the textile materials constituted less than 10 percent of the ESAU. Upon further review, it is now our position that the “Helen 04” boot was designed to be cuffed and therefore more than 10 percent of the external surface area of the upper is comprised of textile material.
It is well settled that when determining the constituent material having the greatest external surface area of a boot, the inner lining is generally not calculated in that analysis. However, certain boot styles are designed to be worn in a cuffed condition with the top shaft rolled or bent downward exposing the inner lining. Such is the case with the Helen 04.
CBP has previously stated that a boot is intended to be “cuffed” when one or more of the factors set forth below are present:
The country of origin/size label is located far down inside the shaft and will not be visible when the boot is cuffed. OR, the country of origin/size label is easily removed without damaging the underlying material. OR, it is an attractive label and does not detract from the appearance of the boot if exposed. OR, it is an attractive label and sewn into the shaft upside down.
The top part of the shaft is a poor match (color, design, material) for the lower part of the shaft, thereby indicating that portion will be hidden when the boot is cuffed.
There is a split at the top rear area of the shaft that facilitates cuffing the boot so that the back edges of the cuff lay flat and not flare out from the shaft.
The lining at or near the top of the boot shaft is made of a different material than that of the lower part of the shaft, and is equally or more attractive as a cuff than the lower lining material.
What Every Member of the Trade Community Should Know About: Footwear, CBP Informed Compliance Publication, April 2012 (“Footwear ICP”); See also, Headquarters Ruling Letter (“HQ”) 088353, dated March 12, 1991 (Wherein CBP applied the aforementioned factors in determining whether a boot was intended to be cuffed); Cf. with HQ 960940, dated July 21, 1998 (CBP found that a ladies cold weather boot was not designed or intended to be cuffed as it did not meet any of the criteria set forth above).
In the instant case, the Helen 04 meets three of the four factors set forth above. For instance, the top half of the inner lining of the boot does not match the bottom half of the inner lining. Moreover, the top half of the inner lining is made up of a fleece-like textile material which is more attractive than the lower portion of the inner lining. The distinguishable composition of the fleece-like material and the non-fleeced portion of the inner lining indicates that the lower portion is not intended to be exposed. Furthermore, the retail labeling is located far down the inner lining lip and is placed on the unattractive non-fleeced material. Lastly, the tongue and front quarter of the Helen 04 boot are constructed in a manner which facilitates cuffing the boot without any flaring from the shaft.
Image A. The subject Helen 04 Boot featuring metal snap buttons. Image B. The subject Helen 04 Boot in its “cuffed” position; with exposed fleece-like textile material.
As the images above demonstrate, the Helen 04 features metal snap buttons on each side of the boot. The metal snap buttons are located on the top of the shaft with a connecting snap button located near the mid quarter of the boot. The snap buttons facilitate the folding over of the top half of the shaft exposing the fleece-like textile material while holding the shaft in a cuffed position. As such, more than any other indicator, the snap button feature establishes that the Helen 04 boot is designed and intended to be cuffed.
Similarly, CBP has previously determined that where textile material comprises more than 10 percent of the ESAU and the rubber or plastic material comprises less than 90 percent of the ESAU, that the footwear was properly classifiable in subheading 6402.91.70, HTSUS rather than subheading 6402.91.40, HTSUS. For example, in HQ 088353 CBP determined that, based upon its conformity with the definition of a cuffed boot, that a boot with a “Fur Cuff Fold Down” was classified as having a textile material comprising more than 10 percent of the ESAU. Likewise, in HQ 088403, dated March 22, 1991, CBP found that a fleece lined boot with snaps which held the cuff in place was intended to be cuffed and did not have an ESAU of more than 90 percent rubber or plastic. Accordingly and based on all of the aforementioned, it is our position that the subject Helen 04 boot is properly classifiable in subheading 6402.91.70, HTSUS.
HOLDING:
Under the authority of GRIs 1 and 6, and by application of Note 4 to Chapter 64, the women’s lace front fashion boot with fleece-like cuffed lining is classified in heading 6402, HTSUS, specifically in subheading 6402.91.70, HTSUS, which provides for:
“Other footwear with outer soles and uppers of rubber or plastics: Other: Covering the ankle: Other: Other: Other: Valued over $3 but not over $6.50/pair.” The 2019 column one, general rate of duty is 90¢ + 37/5%.
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 internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N196436 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