OT:RR:CTF:FTM H282908 JER
TARIFF NO: 6402.99.31
Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111
RE: Application for Further Review of Protest No. 2809-15-100709; classification of disposable shoe covers
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 2809-15-100709, filed by The Law Offices of George R. Tuttle, P.C., on November 9, 2015, on behalf of their client, Shoe Inn, LLC. (“Protestant”), concerning the classification of the Shoe Inn shoe covers, in heading 6404, Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is identified as the Shoe Inn shoe cover. The Shoe Inn shoe cover is constructed of two layers. The inner layer is a spun bond polypropylene textile material and an outer layer of chlorinated polyethylene (CPE), a rubber or plastic. The blue-colored rubber/plastic outer layer, is heat-sealed to, and covers much of, the white textile inner layer almost to the topline. This shoe cover, which measures 18 ½ inches by 6 inches when laid flat, is secured to the foot by a sewn-in elastic band at the topline. Multiple covers are loaded into a specially designed dispensing machine and can cover either foot. The shoe cover is meant to be worn over footwear and used in food processing facilities, health care facilities, construction areas, and manufacturing facilities. The shoe cover is designed for one-time use and then is intended to be discarded. A sample of the shoe cover was provided with the submission.
The merchandise is the subject of six protested entries, wherein U.S. Customs and Border Protection (“CBP”) liquidated the entries under heading 6404, HTSUS, and specifically under subheading 6404.19.3960, which provides for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” Protestant asserts that the subject shoe covers are properly classified under either heading 3926, “Other articles of plastics, and articles of other materials…” In the alternative, Protestant asserts that the shoe covers are classified under either heading 6307, HTSUS, as “Other made-up articles of textile…” or under heading 6405, HTSUS, as “Other footwear: Disposable footwear, designed for one-time use.”
ISSUE:
Whether the disposable shoe covers are classified in heading 3926, HTSUS, as “Other articles of plastics and articles of other materials…” or in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics,” or heading 6307, HTSUS, as “Other made-up articles of textile…” or in heading 6405, HTSUS, as “Other footwear: Other: Disposable footwear, designed for one-time use.”
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on March 3, 2017, within 180 days of liquidation. (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. 2809-15-100709 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed was alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleged the action of the Port was inconsistent with New York Ruling Letter (“NY”) N239495, dated April 19, 2013. We note that since the filing of this protest, NY N239495 has been revoked by Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016. In HQ H246161, CBP found that certain disposable shoe covers were properly classified under subheading 6402.99.31, HTSUS.
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:
3926.90.80 Other…
* * * *
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…
* * * *
6405: Other footwear:
* * * *
6405:20: With uppers of textile material:
* * * *
6405.90 Other:
6405.90.20: Disposable footwear, designed for one-time use
* * * *
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.
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).
The EN to heading 64.05 provides as follows:
64.05 - Other footwear.
Subject to Note 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 plastic, and uppers made of material other than rubber, plastic, leather or textile material;
Footwear, with outer soles of leather or of composition leather, and the uppers of material other than leather or textile material;
Footwear with outer soles of wood, cork, twine or rope, paperboard, furskin, textile fabric, felt, nonwovens, linoleum, raffia, straw, loofah, etc. The uppers may be of any material.
The heading excludes assemblies of parts (e.g., uppers, whether or not affixed to inner sole) not yet constituting nor having the essential character of footwear as described in headings 64.01 to 64.05 (heading 64.06).
* * * *
Protestant disputes the classification of the subject boot covers in heading 6404, HTSUS, and asserts classification in heading 3926, HTSUS, as an article of plastic or in the alternative under subheading 6405.20.90, HTSUS, as disposable footwear. In particular, Protestant argues that the Shoe Inn shoe covers are not footwear for purposes of Chapter 64, because, as Protestant contends, the shoe covers lack an “applied sole” as defined by the HTSUS. In this regard, Protestant argues that the subject shoe cover does not feature a “line of demarcation” between the upper and the bottom portion of the shoe covers.
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.
In HQ 967659, dated July 1, 2005, CBP explained that in order for such footwear to be classified in Chapter 64, the outer sole must be a separately identifiable component and must encompass essentially the entire under foot area. Similarly, the General Explanatory Note to Chapter 64 defines a “sole” 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 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.
CBP has previously determined the classification of substantially similar shoe covers under the HTSUS. In HQ H246161, dated September 12, 2016, CBP classified a disposable shoe cover under heading 6402, HTSUS. The shoe cover of HQ H246161 was designed for one-time use, was considered to be disposable and made of flimsy material. The decision in HQ H246161 provided the following description:
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.
In HQ H246161, CBP determined that the blue-covered CPE layer constituted the sole of the shoe cover despite the fact that the CPE layer covered the majority of the external surface area of the upper. The decision in HQ H246161 reasoned that a clear line of demarcation between the textile upper and the CPE outer sole was apparent; noting that the CPE layer was not a mere coating, but rather a separate piece of material applied to the base material of the upper. In HQ H246161, CBP explained that the seam between the blue-colored CPE layer and the textile upper represented the line of demarcation indicating that there was a separately applied sole.
Similarly, in HQ 956921, dated November 22, 1994, 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 HQ 956921, CBP explained that the blue plastic laminate applied to the shoe cover was designed to be in contact with the ground, and was the portion of the shoe covering that under the foot.
In the instant case, the Shoe Inn shoe cover is constructed of two layers: the inner layer, a spun bond polypropylene textile material and an outer layer of blue-colored chlorinated polyethylene (CPE). The blue-colored CPE is heat-sealed to the white textile inner layer. Much like the shoe cover of HQ H246161, the seam between the white textile layer and the bottom blue-colored CPE layer represents the line of demarcation; indicating a separation between the upper and the applied outer sole. Moreover, the CPE layer is the portion of the shoe cover which covers the bottom of the foot. Likewise, the fact that the blue-colored CPE layer extends above the toe and heel area is irrelevant for purposes of Chapter 64 as it is the part of the footwear that has contact with the ground within the meaning of Note 4(b) to Chapter 64 and is a separate component material having an identifiable line of demarcation. We note however, that the CPE layer in HQ 246161 was affixed to the polypropylene base layer only at the edges, while the remainder of the CPE layer was easily separated and detached from the polypropylene base layer. With respect to this distinction between the applied sole in HQ 246161 and that of the subject shoe cover, Note 1(b) to Chapter 64 requires only that the outer sole be glued, sewn, or otherwise affixed or applied to the upper. Note 1(b) to Chapter 64 does not require that the sole be attached or affixed beyond the edges or to the entire base layer of the upper, so long it is otherwise affixed or applied to the upper. Accordingly, the subject Shoe Inn shoe cover satisfies the definition of footwear for purposes of Chapter 64.
Inasmuch as the subject shoe cover has an applied sole which is affixed to the upper, the instant shoe cover is not precluded from classification in Chapter 64 by operation of Note 1(a) to Chapter 64 or Note 2(b). Instead, the only remaining question is which heading of Chapter 64 does correctly describes the instant shoe cover. Per GRI 1, footwear classification in Chapter 64, HTSUS, depends on two factors, the identification of the component material comprising the greatest external surface area of the upper and the external surface area of the outer sole. Once we identify the material comprising the external surface area of the upper and outer sole of the item, we can begin looking for the proper classification by finding the heading which best describes it.
Moreover, we note that at the four-digit heading level, the classification of footwear is not based upon principal use of the footwear or whether it is classifiable according to an eo nomine provision. After the footwear first satisfied the terms of the four-digit heading (based upon the component material of the outer soles and the upper), principal use or eo nomine provisions are considered at the six-digit subheading level. In this case, classification under subheading 6405.20.90, HTSUS, as Protestant argues, is only appropriate if the shoe cover is not classifiable in any of the previous headings at the four-digit level as heading 6405, HTSUS, is a residual basket provision. Likewise, footwear is only classified in heading 6405, HTSUS, if the material of the outer soles and uppers is not referenced in the preceding headings of Chapter 64.
Based on their constituent material, pursuant to GRI 1, the subject boot covers are prima facie classifiable under heading 6402, HTSUS. In accordance with Note 4(a) to Chapter 64, if the upper consists of two or more materials, classification is determined by the constituent material having the greatest external surface area. Under our facts, the bottom of the blue colored CPE layer measures approximately 6.5 inches in width, on the bottom of the shoe cover and 18.5 inches in in length, while the external surface area of textile upper measures approximately 3 inches from the line of demarcation to the elastic band at the topline and 9 inches in length. Much like the shoe covers in HQ H246161, the CPE layer constitutes the greatest external surface area and thereby constitutes the majority of the constituent material of the subject shoe cover. Inasmuch as the CPE layer is a plastic, classification of the instant shoe cover is governed by that particular material pursuant to Note 4(a) to Chapter 6. Therefore, the Shoe Inn shoe covers are classified in 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.”
HOLDING:
Pursuant to GRIs 1, the Shoe Inn 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 2015 general, column one rate of duty was 6% ad valorem.
Since re-classification of the merchandise as indicated above would result in a lower rate of duty, you are instructed to GRANT 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,
Craig T. Clark, Director
Commercial and Trade Facilitation Division