OT:RR:CTF:FTM H303063 TJS
Mr. Robert B. Silverman
Grunfeld, Desiderio, Lebowitz, Silverman & Klestatd LLP
599 Lexington Ave, 36th floor
New York, NY 10022
RE: Revocation of NY N295514; Classification of the Latex Rubber Boot Saver
Dear Mr. Silverman:
This is in response to your January 31, 2019 letter, filed on behalf of Tingley Rubber Corporation (“Tingley”), requesting modification of New York Ruling Letter (“NY”) N295514, dated April 25, 2018. In NY N295514, U.S. Customs and Border Protection (“CBP”) classified certain disposable latex shoe/boot covers under subheading 6401.92.9060, 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: covering the ankle but not covering the knee: other: other: other.”
On November 26, 2018, you filed a request for modification of NY N295514, asserting classification under subheading 6401.99.30, 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: 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: designed for use without closures.” On January 31, 2019, you amended your request asserting classification under subheading 3926.90.9990, HTSUS, as “other articles of plastics and articles of other materials of headings 3901 to 3914: other: other: other,” or alternatively, under 6401.99.30, HTSUS.
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 July 3, 2019, in Volume 53, Number 22, of the Customs Bulletin. One comment, which will be addressed below, was received in response to this notice.
FACTS:
The product at issue is a disposable, ambidextrous, unisex, shoe/boot cover, identified as the Latex Rubber Boot Saver (the “Boot Saver”). The Boot Saver, a product of Thailand, is made of powder-free natural latex rubber with acid-dipped bottoms. The manufacturing process involves aluminum formers being dipped twice into latex and once into dilute acetic acid. The first dip coats the former with latex. The second dip coats only the lower portion of the former with an additional layer of latex to create a durable bottom/sole. The bottom portion is then dipped a third time in dilute acetic acid, which textures the surface for improved slip resistance. The Boot Savers are meant to be worn over regular shoes or boots by people in food processing facilities to protect the facility from cross-contamination. They come in four sizes (medium, large, extra large, and extra extra large) and four colors (yellow, red, blue, and black).
You submitted two samples: an extra large yellow Boot Saver and a large black Boot Saver over a size 13 Tingley brand, Triumph, waterproof boot.
ISSUE:
Whether the Latex Rubber Boot Saver imported by Tingley Rubber Corporation is classified under subheading 3926.90.9990, HTSUS, 6401.99.3000, HTSUS, or 6401.92.9060 HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides that classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied in their appropriate order.
The HTSUS subheadings under consideration 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…
3926.90.9990: Other…
* * * *
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:
6401.92: Covering the ankle but not covering the knee:
Other:
6401.92.90: Other…
6401.92.9060: Other…
6401.99: Other:
Other:
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:
6401.99.3000: Designed for use without closures…
* * * *
Note 2 to Chapter 39 provides, in pertinent part, as follows:
This chapter does not cover:
Articles of section XII (for example, footwear, headgear, umbrellas, sun umbrellas, walking-sticks, whips, riding-crops or parts thereof);
* * * *
Note 1 to Chapter 64 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;
* * * *
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 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.
* * * *
Pursuant to Note 1(a) to Chapter 64, a disposable shoe covering made of flimsy material and lacking an applied sole is precluded from classification as footwear of Chapter 64, HTSUS. You argue that pursuant to Note 1(a), the Boot Saver is precluded from classification in Chapter 64, HTSUS, because it is a disposable shoe cover, made of flimsy material, without an applied sole. You therefore assert that the Boot Saver should be classified according to its constituent material under subheading 3926.90.9990, HTSUS.
You argue that the Boot Saver’s material is flimsy because it is designed for limited use and must be disposed of to prevent ripping. You assert that even flimsy products must be durable enough to serve a one-time limited use. To support this, you cite several CBP rulings concerning the classification of Halloween costumes in Chapter 95, HTSUS. We note that the merchandise in those rulings is substantially different than the shoe covers at issue. In fact, CBP has consistently determined that disposable latex shoe covers, similar to the Boot Savers, are not flimsy pursuant to Chapter 64, Note 1(a), HTSUS, despite being intended for a one-time limited use. See NY M86014 (Sept. 8, 2006); NY L81039 (Dec. 13, 2004); and, NY E81872 (June 8, 1999). Moreover, the Oxford English Dictionary defines “flimsy” as “insubstantial and easily damaged.” See https://en.oxforddictionaries.com/definition/flimsy (accessed May 15, 2019). The Boot Saver’s latex rubber material is strong and stretchy, and does not tear or rip when pushing a finger through it with little effort. Accordingly, we find that the Boot Saver’s latex rubber material is not flimsy.
As per the General Explanatory Note, Chapter 64 includes disposable footwear, generally designed to be used only once, if it has an applied sole. You argue that the Boot Savers do not have applied soles because they are made from a single component of latex rubber and there are no detachable parts. Whether footwear has an applied sole pursuant to Note 1(a) depends on whether a “line of demarcation” between the outer sole and the upper can be identified. See Headquarters Ruling Letter (“HQ”) H246161 (Sept. 12, 2016); HQ H241512 (July 07, 2014); and, HQ 956921 (Nov. 22, 1994). The samples show a clear line of demarcation where the outer sole’s rough surface meets the upper’s smooth surface. You cite HQ H241512, which indicated that footwear made of a single material, with no additional, applied layer or covering on the bottom, does not have a line of demarcation distinguishing the sole from the remainder of the item. The Boot Savers, while made from a single material, have two additional, distinguishable, applied layers on the bottoms: a second coating of latex and a texturized outer sole. Your product specification sheet even states that “[t]he gap between the 2nd layer of latex and the acid texturing should target 5 mm” and “[t]he lines of the second dip and acid etching should be visually parallel with the shoe bottom edge.” These are clearly noticeable on the samples. Due to the distinguishable outer soles and line of demarcation, we find that the Boot Savers have applied soles.
CBP has consistently determined that one-piece latex shoe/boot covers with roughed up outer soles have applied soles pursuant to Note 1(a) to Chapter 64, HTSUS. See NY N171055 (July 12, 2011); NY E85883 (Sept. 13, 1999); and, NY E81872 (June 8, 1999). In your request, you cite several rulings including NY N266909, dated August 10, 2015, NY D86071, dated January 20, 1999, and NY N171076, dated June 21, 2011, all of which classify various disposable shoe coverings. In your discussion of NY N266909, you reference the styles KBSB “Super Nonskid, Waterproof Shoe Covers-Super Bootie” and the KBE “Economy Short Wear,” neither of which CBP found classifiable in Chapter 64, HTSUS. However, in that ruling, CBP did classify style KBCP “Extra Durable” in Chapter 64, HTSUS, noting that blue-colored chlorinated polyethylene, which covered all but the top 2.5 inches of the white textile material, was a clearly defined outer sole. We find that the Boot Saver, having a distinct rough outer sole, is more analogous to the KBCP “Extra Durable” than the styles you refer to. Similarly, you cite NY D86071, asserting that the Boot Savers are analogous to latex booties stock #1525Y and #1525B, which were classified under subheading 4016.99.35, HTSUS. However, we note that the Boot Savers, having rough soles, are more akin to stock #LB1250, a latex bootie with a ridged sole that CBP classified under subheading 6401.92.90, HTSUS. In reference to NY N171076, you include pictures of the subject shoe cover. The pictures show no clear line of demarcation, unlike the Boot Savers.
In accordance with the above, we find that Boot Savers are classifiable as footwear in Chapter 64, HTSUS, pursuant to Note 1(a), because they are not flimsy and have applied soles. You argue that the Boot Savers should be classified according to their constituent material under Chapter 39, HTSUS. However, we have determined that the Boot Savers are articles of Section XII as footwear, and are therefore precluded from classification in Chapter 39, HTSUS, by application of Note 2(q).
Because we find that the Boot Saver is classifiable in Chapter 64, HTSUS, we consider your alternative claim that the Boot Saver should be classified under subheading 6401.99.30, HTSUS, as waterproof footwear with uppers and soles of rubber/plastic which do not cover the ankle. Whether the Boot Saver is classified under subheading 6401.92.9060 or 6401.99.30 depends on whether it covers the ankle. A representative of your firm visited the National Commodity Specialist Division in New York to demonstrate that the Boot Saver did not cover his anklebone when worn over regular shoes. Based on the observation of the National Import Specialist and our own examination of the samples, we find that the Boot Savers do not cover the ankle. Therefore, the Latex Rubber Boot Saver is classified under subheading 6401.99.30, HTSUS.
In the comment we received, the commenter proposed that the Latex Rubber Boot Saver should be classified under subheading 6401.99.80, 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 upper’s 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). In particular, the commenter claimed that the Boot Saver should not be considered protective because they protect the work space from contamination rather than the wearer’s footwear.
In support of its argument, the commenter relied on NY N304851, dated July 16, 2019, which classified a closed toe/closed heel, one piece molded, 100% rubber, slip-on overshoe, identified as the “Easy Max”, in subheading 6401.99.80, HTSUS. Although the “Easy Max” was designed to prevent slipping on oil, wet, or greasy floors, it did not cover the top of the foot and was not considered protective. CBP does not consider footwear that leaves the top of the foot exposed to be protective. See NY N281317 (Dec. 21, 2016); and NY N271998 (Feb. 11, 2016). Unlike the “Easy Max”, the Boot Saver covers the top of the foot. The fact that the Boot Saver is used to prevent cross-contamination in the workplace does not preclude it from protecting the wearer’s footwear as well. Furthermore, the amended request states, “[t]he Boot Saver's latex material allows the shoe cover to adequately protect the wearer's shoe for a limited time.” Therefore, we are not persuaded by the commenter’s assertion that the Boot Savers are not protective. Having considered the submitted comment, CBP finds that the Latex Rubber Boot Saver remains classified under subheading 6401.99.30, HTSUS.
HOLDING:
By application of GRI 1, we find that the Latex Rubber Boot Saver in NY N295514 is classified under subheading 6401.99.30, 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: 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: Designed for use without closures.” The 2019 column one duty rate is 25% ad valorum.
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 for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N295514, dated April 25, 2018 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