OT:RR:CTF:FTM H298312 TSM
Ms. Yvette Powell
Crocs
7477 E. Dry Creek Parkway
Niwot, Colorado 80503
RE: Modification of NY N266867; Revocation of NY N267221; Tariff classification of certain footwear of plastics
Dear Ms. Powell:
This is in reference to New York Ruling Letter (“NY”) N266867, issued to Crocs on August 10, 2015. In NY N266867, U.S. Customs and Border Protection (“CBP”) classified certain Kadee animal print flat footwear, identified as Style 203105, under subheading 6401.99.80, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes: Other footwear: Other: 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 foxing or a foxing-like band applied or molded at the sole and overlapping the upper).” We have reviewed NY N266867 and found it to be partially incorrect. For the reasons set forth below, we are modifying NY N266867. CBP’s classification of two other styles of footwear (Style 202845 and Style 202196), discussed in NY N266867, remains unchanged.
This is also in reference to NY N267221, issued to PVH Corporation on August 20, 2015, in which CBP classified a certain footwear style, identified as Style 7749010, under 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.”
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. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 54, No. 8, on March 4, 2020, proposing to modify NY N266867 and revoke NY N267221, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice.
FACTS:
In NY N266867, Style 203105 was described as follows:
Style 203105 (Kadee Animal Print Flat W), is a woman’s size 7, closed toe, closed heel, slip-on shoe, which does not cover the ankle. The one-piece molded shoe has an upper and outer sole made from 100 percent thermoplastic. It features small vent holes on the vamp, a small vent hole on the heel, and larger oval holes on the lateral and medial sides. It does not have a foxing or foxing-like band.
In NY N267221, Style 7749010 was described as follows:
Style 7749010, is a girl’s closed-toe, closed-heel, slip-on shoe that does not cover the ankle. It is produced in one piece of molded rubber or plastics. The “upper” is perforated with numerous eyelet holes, and has a plastic tab on the heel portion. The “outer sole” has molded tread. It is not protective and does not have a foxing or foxing like band.
In both NY N266867 and NY N267221, the requesters claimed that the footwear styles at issue should be classified under subheading 6402.99.27, 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: Sandals and similar footwear of plastics, produced in one piece by molding.” Nonetheless, CBP classified Style 203105, at issue in NY N266867, under subheading 6401.99.80, HTSUS, and Style 7749010, at issue in NY N267221, under subheading 6402.99.31, HTSUS. We have now reconsidered our classification of these footwear styles.
ISSUE:
Whether the footwear styles at issue are classified as waterproof footwear of rubber or plastics under subheading 6401.99.80, HTSUS, sandals or similar footwear of plastics, produced in one piece by molding, under subheading 6402.99.27, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions at issue are as follows:
6401 Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes:
Other footwear:
6401.99 Other:
* * *
Other:
* * *
Other:
6401.99.80 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 foxing or foxing-like band applied or molded at the sole and overlapping the upper)
* * *
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:
6402.99.27 Sandals and similar footwear of plastics, produced in one piece by molding
* * *
6402.99.31 Other
* * *
To determine whether footwear Style 203105, at issue in NY N266867, is classified in heading 6401, HTSUS, as waterproof footwear, or heading 6402, HTSUS, as other footwear, we consider whether it meets the definition of “waterproof footwear.”
Additional U.S. Note 3 to Chapter 64, HTSUS, provides the following:
For the purposes of heading 6401 “waterproof footwear” means footwear specified in the heading, designed to protect against penetration by water or other liquids, whether or not such footwear is primarily designed for such purposes.
Upon review, we find that footwear Style 203105 features small vent holes on the vamp (the top front part), a small vent hole on the heel, and larger oval holes on both sides close to the outer sole. These characteristics show that the subject footwear style was not designed to protect the feet from penetration by water or other liquids. Therefore, we find that it is not “waterproof footwear” within the meaning of Additional U.S. Note 3 to Chapter 64, HTSUS, and is not classified under heading 6401, HTSUS.
Footwear Style 203105, at issue in NY N266867, and footwear Style 7749010, at issue in NY N267221, are both made of 100 percent plastics, do not cover the ankle, and are produced in one piece by molding. Although these footwear styles are not sandals because they do not have an open-toe, an open-heel, or an outer sole held to the foot with straps, upon review we find that these footwear styles constitute similar footwear of plastics. Moreover, because they are also made of plastics and produced in one piece by molding, we find that they are specifically covered by 6402.99.27, 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: Sandals and similar footwear of plastics, produced in one piece by molding.”
We note that CBP has consistently classified below the ankle slip-on non-waterproof footwear, produced in one piece by molding, under subheading 6402.99.27, HTSUS. See NY N014536, dated August 2, 2007 (classifying a sandal-like slip-on shoe which does not cover the ankle, is produced in one piece by molding and has three small holes situated along the inside front portion of the upper, under subheading 6402.99.27, HTSUS); NY N239755, dated April 12, 2013 (classifying a closed toe/closed heel slip-on clog which does not cover the ankle, is produced in one piece by molding and has two small holes above the sole, under subheading 6402.99.27, HTSUS); and NY N234556, dated November 21, 2012 (classifying a closed toe/closed heel shoe with two vent holes incorporated into the medial side, produced of one-piece molded rubber or plastics, under subheading 6402.99.27, HTSUS).
In accordance with the foregoing, we find that footwear Style 203105 and footwear Style 7749010, are classified under heading 6402, HTSUS, and specifically under subheading 6402.99.27, HTSUS.
HOLDING:
Based on the information submitted, we find that footwear Style 203105, at issue in NY N266867, and footwear Style 7749010, at issue in NY N267221, have features similar to sandals, produced in one piece by molding. Therefore, they are classified under heading 6402, HTSUS, and specifically under subheading 6402.99.27, HTSUS, as “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: Sandals and similar footwear of plastics, produced in one piece by molding.” The 2019 column one, general rate of duty is 3% ad valorem.
EFFECT ON OTHER RULINGS:
NY N266867, dated August 10, 2015, is hereby MODIFIED, and NY N267221, dated August 20, 2015, is hereby REVOKED, in accordance with the above analysis.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division