OT:RR:CTF:FTM H288099 JER
TARIFF NO: 6404.19.39
Port Director
U.S. Customs and Border Protection
John F. Kennedy International Airport
Building 77, 2nd Floor
Jamaica, New York 11430
RE: Application for Further Review of Protest No. 1001-17-100190; classification of disposable boot covers
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 1001-17-100190, filed by the law firm of Simon Gluck & Kane, on behalf of their client, Quest Environmental & Safety Products, Inc. (“Protestant”), concerning the classification of the Quest SMS boot covers, also identified as the Q-Gard Traction boot covers, in heading 6404, Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to a request from counsel, a telephone conference was held with counsel and members of my staff on April 1, 2020.
FACTS:
The merchandise at issue is identified as the Q-Gard Traction boot cover. Protestant states that the boot covers are designed for one-time use with skid resistant soles for use in hygienically controlled environments and clean rooms. The Q-Gard Traction boot cover is designed to be worn over the boot. The Quest Safety website describes the boot cover as being disposable and protective apparel. https://www.shopquestsafety.com. According to the literature submitted, the Q-Gard Traction boot covers are approximately sixteen and one half inches in length and six inches tall when lying flat. The Q-Gard Traction boot covers are described as being splash resistant to non-hazardous chemicals. Additionally, the Quest Protective Apparel website states that the Q-Guard Traction 18” (eighteen inch) boot covers feature a polyvinyl chloride plastic (“PVC”) sole for skid resistance and durability on both wet and dry surfaces. www.questqpa.com. The two samples provided feature an elastic band at the top of the article, which secures the boot cover to the leg. In addition to a sewn-on outer sole constructed of PVC, the boot covers consist of uppers made of nonwoven fabric wholly of polypropylene fiber with overlock stitching connecting the uppers and the outer soles. A second sample has the same features and composition as the first sample but also features heel straps that are used to tighten the boot cover over the regular shoe. According to CBP Laboratory Report SV20171923 (“CBP Laboratory Report”), dated September 28, 2017, the uppers are of nonwoven fabric wholly of polypropylene fibers; while the outer sole is a polyvinyl chloride plastic. By weight, the sample is composed of 52% plastic outer sole and 48% nonwoven fabric (for the upper with ties).
The subject merchandise was entered from April 29, 2016 through October 12, 2016. The Port liquidated the subject entries under heading 6404, HTSUS, specifically, under subheading 6404.19.20, HTSUS, which provides for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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….” Protestant claims that the subject boot covers are properly classified under either heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics” or under heading 6405, HTSUS, as “Other footwear.”
ISSUE:
Whether the disposable shoe covers are classified in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics,” or heading 6404, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials,” or in heading 6405, HTSUS, as “Other footwear.”
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. 1001-17-100190 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 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. Specifically, protestant alleges the action of the Port is inconsistent with Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016, in which 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 2016 HTSUS headings at issue are as follows:
6402: Other footwear with outer soles and uppers of rubber or plastics: (con.)
* * * *
Other footwear:
6402.99: Other:
Other:
6402.99.31 Other…
For women:
6402.99.31.65 Other…
* * * *
6404: Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material:
Footwear with outer soles of rubber or plastics:
* * * *
6404.19: Other:
* * *
6404.19.20: 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….
* * *
Footwear with open toes or open heels; footwear of the slip-on type, that is held in place to the foot without the use of laces or buckles or other fastners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastic applied or molded at the sole and overlapping the upper:
Other:
6404.19.39 Other……………….
* * * *
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:
Notes
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.
* * * *
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.
…
(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.
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 6402, HTSUS. Protestant argues that the Q-Gard Traction boot covers are classifiable in heading 6402, HTSUS, as “work footwear” because the subject boot covers are of a kind used by persons in certain occupations and have special features to protect against hazards in the workplace. In support of its position, Protestant cites HQ H246161, asserting that the instant boot covers are identical to the shoe covers in HQ H246161 and, therefore, should be classified under heading 6402, HTSUS.
In the alternative, Protestant asserts that the subject boot covers meet the definition of being flimsy and are therefore classifiable in heading 6405, HTSUS. In a supplemental submission, dated August 28, 2019, Protestant submitted a video presentation demonstrating that the subject boot cover is easily torn. Protestant argues that since the boot cover is “readily torn,” it reinforces its assertion that the boot cover is flimsy and are therefore classifiable as “disposable footwear.” Protestant claims that the subject boot covers are made of a flimsy disposable material which is designed for one-time use and therefore should be classified under subheading 6405.90.20, HTSUS. While subheading 6405.90.20, HTSUS, provides for “Disposable footwear, designed for one-time use” as asserted by Protestant, 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. Here, comparing classification under subheading 6405.90.20, HTSUS, to heading 6402, HTSUS, and heading 6404, HTSUS, is misplaced as classification at the four-digit level must be established first.
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, pursuant to CBP Laboratory Report, the subject boot covers have the uppers of nonwoven fabric wholly of polypropylene fibers and the outer sole of a polyvinyl chloride plastic. Therefore, classification under heading 6402, HTSUS, is not appropriate since this heading covers footwear with outer soles and uppers of rubber or plastics.
Based on their constituent material, pursuant to GRI 1, the subject boot covers are prima facie classifiable under heading 6404, HTSUS, as featuring the outer soles of plastics and uppers of textile material. Protestant claims that the boot covers are improperly classified under subheading 6404.19.20, HTSUS, as these boot covers are not protective. We agree with Protestant’s argument that these boot covers are not protective, and the classification at the 8-digit level under subheading 6404.19.20, HTSUS is not appropriate. However, we note that the boot covers are properly classified under subheading 6404.19, HTSUS. In particular, the subject boot covers are classified under subheading 6404.19.39, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Other: Footwear of the slip-on type, not having foxing or foxing-like band: Other: Other: Other.” The term “other” in subheading 6404.19.39, HTSUS, refers to footwear having more than 10 percent by weight of rubber or plastics. The boot covers are of a slip-on style, since these are the boot covers that must be pulled on, and they have elastic sewn into the top edge of the fabric of the upper (one of the samples has heel straps which allow the sample boot cover to be tightened over a regular shoe/boot, but these straps are not needed to keep the boots on during use). See Treasury Decision (T.D. 93-88), published in Customs Bulletin, Volume 27, Number 46, dated November 17, 1993 (containing certain footwear definitions used by CBP to classify footwear, including the definition of a “slip-on”). Also, according to CBP Laboratory Report, these boot covers are composed of 52% plastic outer sole and 48% nonwoven fabric (for the upper and ties) by weight.
Furthermore, CBP has previously classified shoe and/or boot covers described as being made of flimsy material and which were designed for one-time use under headings 6402, HTSUS, and 6404, HTSUS. For example, in HQ 956921, dated November 22, 1994, CBP addressed the classification of a pair of shoe covers made up of polypropylene textile fibers with soles which were laminated and made of a blend of plastic, polyester and wood pulp. In HQ 956921, CBP explained that although subheading 6405.90.20, HTSUS, provides for disposable footwear, designed for one-time use, such footwear can only be classified under heading 6405, HTSUS, if it has outer soles and uppers of a material or combination of materials not referred to in the preceding headings of Chapter 64. Even though CBP referenced the EN to heading 6405, classification of the boot covers was made by applying GRI 1, and CBP classified the surgical shoe covers under heading 6404, HTSUS, as they had a sole made of plastic and a textile upper. Similarly, in HQ H241512, dated July 7, 2014, CBP determined that disposable shoe covers used in hospital settings were classified in heading 6402, HTSUS, because the shoe covers had soles of plastic and uppers of a plastic textile material. The decision in HQ H241512 determined that the shoe covers met the definition of footwear (with applied outer soles) as set forth in the General Explanatory Notes to Chapter 64 and concluded that the their constituent material (uppers of plastic and soles made of plastic) was specifically provided for under heading 6402, HTSUS. Accordingly, in keeping with the application of GRI 1 and 6 and CBP’s decisions in HQ 956921 and HQ H241512, we find that the subject Q-Gard boot covers are properly classified under subheading 6404.19.39, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Other: Footwear of the slip-on type, not having foxing or foxing-like band: Other: Other: Other.”
HOLDING:
Pursuant to GRI 1 and GRI 6, the Q-Gard Traction boot covers are classified in heading 6404, HTSUS, specifically subheading 6404.19.39, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Other: Footwear of the slip-on type, not having foxing or foxing-like band: Other: Other: Other.” The 2016 general, column one rate of duty is 37.5 % ad valorem.
Since re-classification of the merchandise as indicated above would not result in a lower rate of duty as claimed, 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,
Craig T. Clark, Director
Commercial and Trade Facilitation Division