CLA-2 OT:RR:CTF:TCM H246161 CkG
TARIFF NO: 6402.99.31
Jonathan M. Fee
Alston & Bird LLP
950 F Street, NW
Washington, DC 20004
RE: Reconsideration of NY N239495; classification of disposable shoe covers
Dear Mr. Fee:
This is in response to your request for reconsideration of New York Ruling Letter (NY) N239495, dated April 9, 2013, filed on behalf of Protexer, Inc., contesting Customs and Border Protection’s (CBP) classification of disposable shoe covers in subheading 6402.99.33, Harmonized Tariff Schedule of the United States (HTSUS), as other, protective footwear with outer soles and uppers of rubber or plastics.
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 proposing to revoke NY N239495 was published on May 04, 2016, in Volume 50, Number 18 of the Customs Bulletin. One comment was received in response to this notice.
FACTS:
The product at issue is a disposable shoe cover, identified as style Super Bootie II, with an elasticized opening, of the type worn by persons in health care or food processing facilities over regular shoes. The shoe cover is made of a spunbound polypropylene material, which has been partially laminated with a plastic chlorinated polyethylene (CPE), then subsequently cut to shape. The CPE layer is affixed to the polypropylene base layer only by its edges, while the remainder of the CPE layer separates easily from the base material. The universally-sized shoe covers measure approximately 16-1/2 inches long and approximately 6 inches tall when lying flat. It is intended to prevent the transfer of oil, dirt, water and other contaminants from a user’s shoe to an otherwise sanitary environment. The blue-colored CPE layer covers the bottom of the shoe cover and up to the toe portion, covering all but the top 7/8-inch of the white-colored textile portion of the upper.
You claim classification of the subject disposable shoe covers in heading 6307, HTSUS, as other made up textile articles, or alternatively, in heading 6402, HTSUS.
ISSUE:
Whether the Super Bootie II disposable shoe covers imported by Protexer are classified in heading 6307, HTSUS, as other made up textile articles, or in heading 6402, HTSUS, as footwear with outer soles and uppers of plastics or rubber.
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." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.
The HTSUS headings at issue are as follows:
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:
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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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):
Other:
6402.99.31: 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 1 to Chapter 64, HTSUS, provides, in pertinent part, 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
Footwear of textile material, without an outer sole glued, sewn or otherwise affixed or applied to the upper (Section XI)
Note 4 to Chapter 64 provides as follows:
4. Subject to note 3 to this chapter:
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;
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.
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 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.
The footwear covered by this Chapter may be of any material (rubber,
leather, plastics, wood, cork, textiles including felt and nonwovens, furskin, plaiting materials, etc.) except asbestos, and may contain, in any proportion, the materials of Chapter 71.
Within the limits of the Chapter itself, however, it is the constituent material of the outer sole and of the upper which determines classification in headings 64.01 to 64.05.
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…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).
Emphasis supplied.
The EN to heading 6405 provides:
Subject to Notes 1 and 4 to this Chapter, this heading covers all footwear having outer soles and uppers of a material or combination of materials not referred to in the preceding headings of this Chapter.
The heading includes in particular :
Footwear, with outer soles of rubber or plastics, and the uppers made of material other than rubber, plastics, leather or textile material;…
* * * *
In NY N239495, CBP concluded that the instant shoe covers should be classified as footwear in Chapter 64, specifically heading 6402, HTSUS. You claim classification of the instant goods in heading 6307, HTSUS.
You argue that the instant footwear is excluded from Chapter 64 by operation of Note 1(b) to that Chapter, because the shoe covers are made of textile material, and because they lack an applied sole. You contend that the plastic laminate on the instant cover is not a sole because it covers too much of the shoe cover, extending to the sides and potentially over the top of the toes, and that it any case, the plastic coating could not be considered to be an applied sole because it was applied to the textile base material before it was cut to form the shoe cover. Finally, you contend that classification of the shoe covers as “protective” footwear in subheading 6402.88.33, HTSUS, is inappropriate because the plastic coating does not offer sufficient protection against water, oil or inclement weather.
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 and lacking an applied sole is precluded from classification as footwear of Chapter 64. Pursuant to Note 1(b) to Chapter 64, footwear of textile material without an outer sole glued, sewn or otherwise affixed or applied to the upper is precluded from classification in Chapter 64. Conversely, as noted in the General Explanatory Note to Chapter 64, flimsy disposable shoe covers, including those of textile materials, 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. In determining whether a shoe covering has an applied sole pursuant to Note 1 to Chapter 64, we look to whether there is a "line of demarcation" between the upper and the outer sole, which indicates that the outer sole was a distinct, separate component which was applied to the upper. See Headquarters Ruling Letter (HQ) H005104, dated May 20, 2010; HQ 967659, dated July 1, 2005; HQ 967851, dated November 18, 2005; and HQ 956921, dated November 22, 1994. In particular the "line of demarcation" has been defined as "the line along which the sole ends and the upper begins." See Treasury Decision (T.D.) 93-88 (27 Cust. Bull. & Dec. 46), dated October 25, 1993. Applying these definitions to the present merchandise, the product consists of two separate pieces of material that are affixed together, with a clear line of demarcation between them. You claim that the sole is not a separate piece of material because the CPE layer constitutes a coating, and that the shoe cover is therefore covered in its entirety by Section XI, as a coated fabric. We disagree. The CPE layer is affixed to the polypropylene base layer only at the edges; the remainder of the CPE layer is not attached to the base textile layer in any way. In addition, this office was able to easily detach the blue CPE layer entirely. The CPE layer is therefore not a coating, but rather a separate piece of material applied to the base material of the upper. The seam is the line of demarcation and the ability to separate the two components is a clear indication that there is a separately applied outer sole.
Contrary to your position that the plastic laminate on the instant cover cannot be a sole because it is too extensive, nothing in the tariff or ENs states that a sole that is too extensive is no longer a sole. Nor is it stated anywhere in the tariff or in common definitions of the term “sole” that a sole must provide support or absorb impact for the user, as the Protestant contends. For example, the Merrriam-Webster Dictionary Online and the Oxford English Dictionary Online, respectively, 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.
Thus, there is nothing in either the tariff or the common understanding of the term “sole” that limits the scope of the term in the manner you suggest. The sole of an article of footwear is the portion covering the bottom of the foot. Whether the material constituting the sole extends past the bottom of the shoe cover is irrelevant, as long as it covers the bottom of the foot.
Nor do we find that the stage at which the CPE layer is applied precludes it from being considered an applied sole. Essentially, you argue that the plastic coating was not a sole when it was applied to the polypropylene base layer because the material was not yet cut to shape. However, articles are classified in their condition at time of importation. See United States v. Citroen, 223 U.S. 407 (1911). The instant shoe covers have an additional, separate layer that was applied to cover the bottom of the foot. Hence, regardless of when the plastic laminate became a sole, by the time of importation it is a sole. That sole was separately applied to the base material of the shoe cover, making it an applied sole for the purposes of Note 1 to Chapter 64.
The instant shoe covers are made of a base layer of a nonwoven textile material, partially covered with plastic. Pursuant to Note 4(a) to Chapter 64, the outer sole is the part of the footwear in contact with the ground. The CPE layer thus constitutes the outer sole. Pursuant to Note 4(b) to Chapter 64, the material of the upper is the constituent material having the greatest external surface area. In this case, the CPE layer covers the majority of the external surface area of the upper. The instant shoe covers therefore have outer soles and uppers of plastic and are classified in heading 6402, HTSUS.
Within heading 6402, HTSUS, two subheadings are implicated. We thus turn to GRI 6. Subheading 6402.99.31 provides for footwear with uppers of which over 90 percent of the external surface area is plastics, except 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. Subheading 6402.99.33 provides for 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. NY N239495 determined that instant shoe covers were classified as “protective” footwear in subheading 6402.99.33, HTSUS. We disagree. While the blue laminate is waterproof, the material itself is flimsy and easily punctured or torn. In addition, the waterproof laminate does not cover the entire shoe cover, leaving the top of the white textile base layer exposed. Moreover, the shoe cover itself does not cover the entire foot. Due to the design of the shoe cover, the top of the foot is left mostly exposed while excess material gathers at the front and back of the shoe. Thus, we do not find that the shoe cover offers any particular protection against water, oil, grease or chemicals or cold or inclement weather, in addition to that already provided by most shoes. The instant shoe covers are therefore classified in subheading 6402.99.31, HTSUS.
One comment in response to the notice of proposed revocation argued that shoe covers of this type are indeed protective, and that the reasoning outlined above was incorrect and impermissibly narrowing the scope of the subheading. We disagree. We are not articulating any new or narrower test, but rather reiterating a longstanding position of Customs, as set forth in Treasury Decision 93-88 as follows: “footwear is designed to be a ‘protection’ against water, oil or cold or inclement weather only if it is substantially more of a ‘protection’ against those items than the usual shoes of that type. For example, a leather oxford will clearly keep your feet warmer and drier than going barefoot, but they are not a ‘protection’ in this sense.” (emphasis added). See T.D. 93-88, dated October 25, 1993, published in the Customs Bulletin, Volume 27, Number 46. The examples given of footwear that is “protection” against water include “all items which are worn over other shoes or boots to give additional protection against water, e.g., galoshes.” Read in the context of the requirement that protective footwear must be “substantially more of a ‘protection’ against those items than the usual shoes of that type”, and the reference to galoshes as an example of footwear worn over other shoes for additional protection, we find that subheading 6402.99.33, HTSUS, requires more than the minimal “protection” than that offered by the subject shoe covers.
You cite to several rulings in support of classification of the instant shoe covers in heading 6307, HTSUS, including HQ 089744, dated October 10, 1991, HQ 081945, dated January 29, 1990, NY J83244, dated April 18, 2003, and NY G83136, dated October 25, 2000, all of which classified various styles of disposable shoe covers in heading 6307, HTSUS. However, we note that the merchandise at issue in these rulings is distinguishable from the Protexer shoe covers. In NY J83244, CBP classified a disposable shoe cover with plastic dots used for traction in heading 6307, HTSUS. Plastic dots that do not cover the entire bottom of the shoe cover are not soles for the purposes of Chapter 64; NY J83244 therefore has no bearing on the classification of the instant merchandise. Similarly, in NY G82136, CBP classified shoe covers with and without a “skid bottom” in heading 6307, HTSUS. It is unclear from the description whether the composition and coverage of the referenced “skid bottom” is more similar to the plastic laminate of the Protexer shoe covers or the “plastic dots” added for traction to the shoe covers of NY J83244. Finally, the shoe covers at issue in HQ 089744 and HQ 081945 were made of one material only and thus lacked an additional, applied coating on the bottom of the shoe cover. We therefore do not find any of these rulings persuasive as to the classification of the instant merchandise.
In contrast, CBP has classified virtually identical merchandise to the Protexer shoe covers at issue in Chapter 64, HTSUS, as footwear. See Headquarters Ruling Letter (HQ) 956921, dated November 22, 1994. In HQ 956921, 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. See also HQ H241512, dated Jul 07, 2014; NY N239495, dated April 9, 2013; NY N202027, dated February 22, 2012; 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 F86838, dated June 2, 2000.
HOLDING:
Pursuant to GRIs 1 and 6, the Protexer Super Bootie II shoe covers are classified in heading 6402, HTSUS, specifically subheading 6402.99.31, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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): Other: Other.” The 2016 general, column one rate of duty is 6% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N239495, dated April 9, 2013, 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