CLA-2 OT:RR:CTF:TCM H241512 CkG
TARIFF NO: 6402.99.33, 6307.90.98, 3926.90.99
Port Director
U.S. Customs and Border Protection
Port of Atlanta
157 Tradeport Drive
Atlanta, GA 30354
Attn: Dave Seeley, Import Specialist
RE: Application for Further Review of Protest No. 1704-12-100345;
classification of disposable shoe covers
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 1704-12-100345 filed on behalf of Shubee, Inc. (‘Protestant”), contesting Customs and Border Protection’s classification of six styles of shoe covers in heading 6402, Harmonized Tariff Schedule of the United States (HTSUS), as footwear with outer soles and upper of rubber or plastics.
FACTS:
At issue are six styles of disposable shoe covers with an elasticized opening, of the type worn by persons in health care or food processing facilities over regular shoes. Samples of three representative styles were submitted. The “slip resistant” shoe cover (Style C SB SC WCFXL) has an upper of plastic laminated to a non-woven textile backing, and a separately applied sole of plastic. The Shubee “original” shoe cover (Style C SB SC DB) is constructed of nonwoven textile fabric. It is of one-piece construction , with an elasticized opening, and seamed on the bottom to form a shape that fits over a shoe. It does not have a separate or applied sole. The “waterproof” shoe cover (Styles C SB SC WP DB, C SB SC WP RD, C SB SC WP BLK, and SC PPPE DB) is constructed of plastic sheeting. It is of one-piece construction, with an elasticized opening, and seamed on the bottom to form a shape that fits over a shoe. It does not have a separate or applied sole.
All styles of the Shubee shoe covers are designed to be worn over a shoe as a protection against chemicals, contaminants, etc., and/or to prevent cross-contamination in a variety of settings.
The subject merchandise was entered between December 11, 2011, and July 16, 2012, in heading 6210, HTSUS, which provides for “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907.” The Port of Atlanta liquidated the subject entries in headings 6402, HTSUS (“other footwear with outer soles and uppers of rubber or plastics”), heading 3926, HTSUS (“other articles of plastic”), and heading 6307, HTSUS (“other made up articles”).
ISSUE:
Whether the disposable shoe covers are classified in heading 3926, HTSUS, as other articles of plastic; heading 6210, HTSUS, as textile garments; heading 6307, HTSUS, as other made up articles; or heading 6402, HTSUS, as footwear with uppers and outer soles of plastics.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 1704-12-100345 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise; specifically, Protestant alleges that the liquidation of the subject shoe covers in headings 3926, 6307 and 6402, HTSUS, is inconsistent with CBP’s decision in HQ 086972, dated July 12, 1990, HQ 958389, dated September 7, 1995, and NY L80753, dated November 30, 2004.
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 GRIs 2 through 6. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
The HTSUS headings at issue are as follows:
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90: Other:
3926.90.99: Other…
* * * *
6210: Garments, made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907
6210.10: Of fabrics of heading 5602 or 5603:
Other:
6210.10.50: Nonwoven disposable apparel designed for use in hospitals,
clinics, laboratories or contaminated areas.
* * * *
6307: Other made up articles, including dress patterns
6307.90: Other:
Other:
6307.90.98: Other…
* * * *
6402: Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.99 Other:
Other:
Other:
6402.99.33 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…
* * * *
Note 2(p) to Chapter 39 provides as follows:
2. This Chapter does not cover…
(p) Goods of Section XI (textiles and textile articles);
Note 1 to Section XI provides, in pertinent part, as follows:
1. This Section does not cover…
(h) Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated,
covered or laminated with plastics, or articles thereof, of chapter 39;
(n) Footwear or parts of footwear, gaiters or leggings or similar articles of chapter 64;
Note 1(a) to Chapter 64, HTSUS, provides as follows:
This chapter does not cover…
Disposable foot or shoe coverings of flimsy material (for example, paper, sheeting of plastics) without applied soles. These products are classified according to their constituent material.
Note 14 to Section XI provides as follows:
14. Unless the context otherwise requires, textile garments of different headings are to
be classified in their own headings even if put up in sets for retail sale. For the
purposes of this note, the expression "textile garments" means garments of headings
6101 to 6114 and headings 6201 to 6211.
* * * *
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 62.10 provides, in pertinent part, as follows:
The heading does not include :
Clothing accessories (e.g., gloves, mittens and mitts of heading 62.16).
The General Explanatory Note to Chapter 64 provides, in pertinent part, as follows:
GENERAL
With certain exceptions (see particularly those mentioned at the end of this General Note) this Chapter covers, under headings 64.01 to 64.05, various types of footwear (including overshoes) irrespective of their shape and size, the particular use for which they are designed, their method of manufacture or the materials of which they are made.
For the purposes of this Chapter, the term “ footwear ” does not, however, include disposable foot or shoe coverings of flimsy material (paper, sheeting of plastics, etc.) without applied soles. These products are classified according to their constituent material.
The Chapter includes:
…
(10) Disposable footwear, with applied soles, generally designed to be used only once.
…
(C) The term “ outer sole ” as used in headings 64.01 to 64.05 means that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground. The constituent material of the outer sole for purposes of classification shall be taken to be the material having the greatest surface area in contact with the ground. In determining the constituent material of the outer sole, no account should be taken of attached accessories or reinforcements which partly cover the sole (see Note 4 (b) to this Chapter). These accessories or reinforcements include spikes, bars, nails, protectors or similar attachments (including a thin layer of textile flocking (e.g., for creating a design) or a detachable textile material, applied to but not embedded in the sole).
In the case of footwear made in a single piece (e.g., clogs) without applied soles, no separate outer sole is required; such footwear is classified with reference to the constituent material of its lower surface.
(D) For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. The upper is the part of the shoe or boot above the sole. However, in certain footwear with plastic moulded soles or in shoes of the American Indian moccasin type, a single piece of material is used to form the sole and either the whole or part of the upper, thus making it difficult to identify the demarcation between the outer sole and the upper. In such cases, the upper shall be considered to be that portion of the shoe which covers the sides and top of the foot. The size of the uppers varies very much between different types of footwear, from those covering the foot and the whole leg, including the thigh (for example, fishermen’s boots), to those which consist simply of straps or thongs (for example, sandals).
Protestant disputes the classification and liquidation of the instant shoe covers in
headings 3926, 6307 and 6402, HTSUS, and claims classification in heading 6210, HTSUS, as a textile garment. Protestant cites NY L80753, dated November 30, 2004, which classified a coverall with separate shoe covers in heading 6210, HTSUS, and argues that the separately imported shoe covers at issue are also classified in heading 6210, HTSUS. Specifically, Protestant claims classification in subheading 6210.10.50, HTSUS, the subheading that provides for nonwoven disposable apparel designed for use in hospitals, clinics, laboratories or contaminated areas. Protestant concludes that the shoe covers at issue are garments designed for use in these settings.
Heading 6210, HTSUS provides for textile garments. In H.I.M./Fathom, Inc. v. United States, 21 C.I.T. 776, 781 (1997) (H.I.M./Fathom), the U.S. Court of International Trade (CIT) defined the tariff term “garment” as follows:
A garment is defined as "an article of outer clothing (as a coat or dress) usu. exclusive of accessories." Webster's Third New International Dictionary 936 (1993). Clothing is defined as "covering for the human body or garments in general: all the garments and accessories worn by a person at any one time." Id. at 428.
See also HQ H145555, dated August 6, 2012.
Pursuant to the above definitions, CBP has specifically held that shoe covers imported separately are not considered garments or clothing accessories, because they are not worn on the body. See HQ 089069, dated August 16, 1991; HQ 081945, dated January 29, 1990; HQ 084857, dated June 28, 1989; and NY N055984, dated April 10, 2009. In HQ 084857, CBP stated, in pertinent part:
[I]n order to be classifiable under Heading 6217, an article must be a clothing accessory. In our view, shoes are commonly considered to be apparel accessories and not “clothing”, and, while shoe covers may be considered to be shoe accessories, accessories of clothing accessories are not within the purview of Heading 6217.
Similarly, in HQ 085012, dated August 7, 1989, CBP ruled that earmuffs were not “other” garments of heading 6114, HTSUS, because they do not clothe the trunk of the body. Hence, the instant shoe covers are not garments because they do not clothe the trunk of the body, and they are not classified in heading 6210, HTSUS.
Protestant argues that the shoe covers are garments because in NY L80753, CBP classified a coverall and separate shoe covers as garments in heading 6210, HTSUS. Protestant also cites CBP rulings HQ 086972, dated July 12, 1990, which classified coveralls and shoe covers in heading 6210, HTSUS, and HQ 958389, dated September 7, 1995, which classified a one-piece coverall in heading 6210, HTSUS, in support of their position.
First, we note that at issue in HQ 958389 was a full-body, one-piece coverall, not a shoe cover. Indeed, the ruling clearly states that the imported garment “lacks elasticized foot cuffs or boots to cover the wearer's shoes.” This ruling is therefore not persuasive as regards the classification of shoe covers.
In HQ 086972 and NY L80753, CBP classified various styles of disposable coveralls imported together with shoe covers in heading 6210, HTSUS. HQ 086972 describes a garment with attached shoe covers: “Style 1415 is hoodless but has attached boots…All are one-piece garments with zippered fronts”. NY L80753 described each style of the products at issue as follows: “The garment features a full frontal opening with a zipper closure, a tight fitting collar, long sleeves with elasticized cuffs and separate elasticized shoe covers.”
The merchandise at issue in HQ 086972 was a one-piece garment, and the merchandise at issue in NY L80753 was imported, packaged and intended to be used together. In the instant case, the merchandise at issue is described as shoe covers. The merchandise imported is shoe covers. Because the merchandise at issue in HQ 958389, HQ 086972, and NY L80753 is different than the instant shoe covers, these rulings are not instructive on the classification of the shoe covers at issue. Pursuant to the above discussion, none of the styles of the instant shoe covers are classified in heading 6210, HTSUS, because none are textile garments.
In addition, Note 1(n) to Section XI excludes footwear of Chapter 64 from classification in Section XI (which includes Chapter 62). Of the six styles of shoe covers at issue, the “slip resistant” cover (style C SB SC WCFXL), was liquidated in heading 6402, HTSUS, as footwear with outer soles and uppers of plastic. Thus, if the “slip resistant” style of shoe covers is prima facie classifiable in Chapter 64 as footwear, it is precluded from classification in Chapter 62, and heading 6210, HTSUS, on the basis of Note 1(n) to Section XI.
Footwear is defined as “wearing apparel (as shoes or boots) for the feet”,
or “Outer coverings for the feet, such as shoes, boots, and sandals.” See http://www.merriam-webster.com.
Pursuant to Note 1(a) to Chapter 64, which governs the classification of disposable shoe coverings in Chapter 64, a disposable shoe covering made of flimsy material is not classified in Chapter 64 if it lacks an applied sole. Conversely, as noted in the General Explanatory Note to Chapter 64, flimsy disposable shoe covers are classified in Chapter 64, as “footwear”, if they do have an applied sole.
A sole is defined in the General Explanatory Note to Chapter 64 as the part of the footwear in contact with the ground. The Merrriam-Webster Dictionary Online and the Oxford English Dictionary Online, respectively, further define “sole” as follows:
a : the undersurface of a foot
b : the part of an item of footwear on which the sole rests and upon which the wearer treads
http://www.merriam-webster.com/dictionary/sole.
a. The bottom of a boot, shoe, etc.; that part of it upon which the wearer treads (freq. exclusive of the heel); one or other of the pieces of leather or other material of which this is composed (cf. insole n. and outsole n.). Also, a separate properly-shaped piece of felt or other material placed in the bottom of a boot, shoe, etc.
http://www.oed.com/view/Entry/184121?rskey=VW5Gs4&result=1#eid.
In determining whether a shoe covering has an applied sole pursuant to Note 1(a), we look to whether a line of demarcation between the sole and the upper can be identified. A 'line of demarcation' exists if one can indicate on the item the line along which the sole ends and the upper begins. Footwear made of a single material, with no additional, applied layer or covering on the bottom (e.g., an infant’s bootie, or the other styles of shoe covers classified according to their constituent material, in heading 3926 (articles of plastic) or 6307 (articles of textile)) does not have a line of demarcation distinguishing the sole from the remainder of the item. In the case of the “slip resistant” cover (style C SB SC WCFXL), the line separating the applied laminate from the remainder of the covering is clear and constitutes a line of demarcation separating the sole from the upper.
The slip resistant style has a separate material that is applied to cover the bottom of the foot. It therefore has an applied sole for the purposes of Note 1(a) to Chapter 64 and is classified therein. Style C SB SC WCFXL features outer soles and uppers of plastic, and is thus classified in heading 6402, HTSUS, as footwear with soles and uppers of plastic. Because the “slip resistant” style is classified in heading 6402, HTSUS, and is therefore an article of Chapter 64, it cannot be classified in heading 6210, HTSUS, pursuant to Note 1(n) to Section XI.
Pursuant the above analysis, CBP has consistently classified shoe covers with applied soles, virtually identical to style C SB SC WCFXL, as footwear in Chapter 64, HTSUS. See e.g., HQ 956921, dated November 22, 1994; NY N239495, dated April 9, 2013; NY N182015, dated September 16, 2011; NY N034202, dated August 11, 2008; NY N007466, dated March 15, 2007; NY L81039 , dated December 13, 2004; and NY K87771, dated July 20, 2004. In HQ 956921, for example, CBP determined that a plastic layer applied to the bottom of a disposable textile shoe covering constituted an applied sole pursuant to Note 1(a) to Chapter 64, and therefore the disposable shoe cover was classified in Chapter 64, specifically heading 6404. In this ruling, CBP noted that the blue plastic laminate applied to the shoe cover was designed to be in contact with the ground, and would be approximately under the foot.
The remaining shoe cover styles at issue (the “waterproof” and “original”) are each made of a single material and do not have an applied sole pursuant to Note 1(a) to Chapter 64. They are therefore precluded from classification in Chapter 64. They are thus classifiable at GRI 1 according to their constituent material. The waterproof styles (Styles C SB SC WP DB, C SB SC WP RD, C SB SC WP BLK, and SC PPPE DB) are made of plastic sheeting and are classified in heading 3926, HTSUS. Contrary to Protestant’s assertion, heading 3926, HTSUS, does not merely cover plastic in primary forms. It covers articles made of plastics, and therefore covers the instant shoe covers. The original shoe cover (Style C SB SC DB) is made of nonwoven textile material and is classified in heading 6307, HTSUS, as a made up textile article.
Pursuant to the above analysis, CBP has consistently classified shoe covers made of a single material—i.e., lacking an applied sole—in heading 6307, HTSUS, or heading 3926, HTSUS, according to their constituent material. See e.g., NY N171076, dated June 21, 2011; NY N053260, dated March 16, 2009; NY N012508, dated July 6, 2007; NY F86712, dated May 11, 2000; NY F88501, dated June 23, 2000; NY E82610, dated June 16, 1999; and NY A89868, dated December 6, 1996.
Finally, Protestant’s argument that the instant shoe covers are designed for use in hospitals, clinics, laboratories or contaminated areas, and that subheading 6210.10.50 provides a more specific description of the merchandise than subheadings 3926.90.99, 6307.90.98 and 6402.99.49, pursuant to GRI 3(a) is flawed.
In accordance with the GRIs, if classification can be resolved at GRI 1—that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes —then the classification inquiry ends there. Only 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, are the remaining GRIs applied.
Pursuant to GRI 1, classification must first be determined at the four-digit heading level before any subheadings can be considered. Furthermore, only headings or subheadings on the same level are comparable. Thus, four-digit headings cannot be compared to subheadings, and only subheadings under the same heading are comparable. See e.g., CBP Informed Compliance Publication: Tariff Classification, available at http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_compliance_pubs/icp017r2.ctt/icp017r2.pdf. Hence, whether subheading 6210.10.50, HTSUS, is more or less specific than subheadings 3926.90.99, 6307.90.98, or 6402.99.49, HTSUS, pursuant to GRI 3, does not control the classification of the instant shoe covers. Because classification is resolved at GRI 1, the remaining GRIs are not applicable.
HOLDING:
Pursuant to GRI 1, the Shubee disposable shoe covers are classified as follows:
The “slip resistant” style C SB SC WCFXL is classified in heading 6402, HTSUS, specifically subheading 6402.99.33, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 2012 general, column one rate of duty is 37.5% ad valorem.
The “original” style C SB SC DB is classified in heading 6307, HTSUS, specifically subheading 6307.90.98, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2012 column one, general rate of duty is 7% ad valorem.
The “waterproof” styles (C SB SC WP DB, C SB SC WP RD, C SB SC WP BLK, and SC PPPE DB) are classified in heading 3926, HTSUS, specifically subheading 3926.90.99, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2012 column one, general rate of duty is 5.3% ad valorem.
You are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant 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 make the decision available to CBP personnel, and to the public online at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division