OT:RR:CTF:FTM H312082 MD
Port Director, Service Port-Seattle
U.S. Customs and Border Protection
17801 Pacific Highway S Seattle, Washington 98158
Attn: Grace Carmichael, Import Specialist
Re: Application for Further Review of Protest No. 3002-17-100171; Classification of Protective Footwear
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3002-17-100171, timely filed by The Law Office of George R. Tuttle, P.C., on behalf of their client, C.O. Lynch Enterprises (“Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of certain types of footwear, under subheading 6404.19.20, Harmonized Tariff Schedule of the United States (“HTSUS”), as 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, with a duty rate of 37.5% ad valorem.
On February 12, 2021, a conference was held to discuss this AFR and the information therein with Protestant’s counsel. No further supplemental information was submitted after this conference.
FACTS:
The footwear styles at issue in this protest include: Men’s Snow Storm Brown (Stock No. 642115), Snow Storm Women’s and Women’s Sand (Stock No. 642116), Snow Storm Kids (Stock No. 642117), Snow Bird Pink (Stock No. 647077), Snow Bird Blue (Stock No. 642078), and Norte Camo with Pink Trim (Stock No. 8002260). Within their protest, Protestant noted both similarities and distinct differences between the six styles of footwear at-issue. Protestant stated that all six styles of footwear consist of a primarily textile upper, are worn as over-the-ankle boots, have a molded bottom constructed of “Thermoplastic Rubber” (“TPR”) extending over two inches from the ground, and have a layer of textile embedded in the outsole.
While Protestant’s submission also highlighted the differences between the six styles of footwear, these differences were offered to assert that each of the six styles were not cold protective. Specifically, the Men’s Snow Storm Brown (Stock No. 642115), Snow Storm Women’s and Women’s Sand (Stock No. 642116), Snow Storm Kids (Stock No. 642117), Snow Bird Pink (Stock No. 647077), and Snow Bird Bird Blue (Stock No. 642078) are constructed as follows:
Insole: ¾” thick layer comprised of Thinsulate and fleece
Toe Box: 1/8” layer consisting of tricot lining w/ foam backing
Vamp: 1/8” layer consisting of tricot lining w/ foam backing
Shaft: No shaft
Collar: ½” foam and 1/8” tricot lining
In contrast, the Notre Came with Pink Trim is constructed with:
Insole: 3/8” layer of Berber lining with foam backing
Toe Box: 3/8” layer of Berber lining with foam backing
Vamp: 3/8” layer of Berber lining with foam backing
Shaft: 3/8” layer of Berber lining with foam backing
Collar: ½” layer of tricot w/ foam backing
The merchandise was entered under subheading 6404.19.37, 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 with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, 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 plastics applied or molded at the sole and overlapping the upper: Other: With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The duty rate was 12.5% ad valorem. Upon review of the documentation and the examination of the samples, CBP classified and liquidated the subject footwear under subheading 6404.19.20, HTSUS, at the general rate of duty is 37.5% ad valorem. Protestant claims the correct classification for these styles are as “non-protective footwear” under subheading 6404.19.87, 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: other: valued over $6.50 but not over $12/pair: with uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The general rate of duty is 12.5% ad valorem.
For a product to be classified under subheading 6404.19.20, HTSUS, it must be protective. Specifically, it must be protective against “water, oil, grease, or chemicals or cold or inclement weather.” For the sake of brevity in our analysis, we look to Protestant’s contention that the subject merchandise is not protective footwear in the order in which they appear in Protestant’s submission – beginning with an analysis of water protection and moving to an analysis of cold protection if necessary.
ISSUE:
What is the tariff classification of the footwear at issue?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, 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. 3002-17-100171 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s classification of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 967509, dated March 3, 2005, specifically, and several other rulings reiterating its position. See, e.g., New York Ruling Letter (“NY”) N247430, dated November 29, 2013; and HQ W968301, dated March 13, 2007.
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 provisions of law for all purposes.
GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2015 HTSUS provisions under consideration are as follows:
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
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 protection against water, oil, grease, or chemicals or cold or inclement weather
* * *
6404.19.87 With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter
* * *
T.D. 93-88, provides, in pertinent and relevant part, 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 foot warmer or drier than going barefoot, but they are not a “protection” in this sense. On the other hand, the snow-jogger is the protective version of the non-protective jogging shoe.
Footwear that is a “protection” against water includes:
Any item which will keep your feet dry if you linger in a pool of water which is more than 2 inches deep unless:
It has rigid, think, clog bottom but no protective features – or
In normal use, water will get in over the top of the show or boot, e.g. skindiving and windsurfing boots, and molded rubber beach sandals – or
It is a woman’s molded high heeled shoe in which the top of the foot will be exposed to the rain – or
It is a molded downhill ski boot.
There is no dispute that the subject merchandise is described by the terms of heading 6404, HTSUS, specifically, by the terms of subheading 6404.19, HTSUS. Protestant claims that the subject merchandise should be classified under 6404.19.87, HTSUS. First, Protestant asserts that the six styles of footwear are not “water protective” because CBP’s analysis of the products did not account for the protectiveness of the “entire boot.” Second, Protestant contends that even if the six styles of footwear were “water protective” under T.D. 93-88, they are excluded by the “normal use” exception. We disagree with both of Protestant’s claims.
By Protestant’s own admission, the protested footwear meets the requirements of heading 6404; footwear that contains outer soles of rubber, plastics, leather, or composition leather and uppers of textile materials, and subheading 6404.19; footwear with outer soles of rubber or plastics and be valued over $6.50 but not over $12.00 per pair. Where Protestant takes specific issue is with the language of subheading 6404.19.20, which requires that footwear be “designed […] as a protection against water… cold or inclement weather.” Protestant turns to Wikipedia to define the term “protection” before arriving at the conclusion that the “legislative intent expressed in the plain meaning of ‘designed for protection’ is that the entire boot must be designed as protection against water, cold, or inclement weather.” In support of its claim, Protestant turns to HQ 967509. It is CBP’s position that Protestant’s assertion and supporting evidence are misconstrued.
T.D. 93-88 provides a long-standing definition of the term “protection,” applicable to subheading 6404.19.20, HTSUS. See 27 Cust. Bull. & Dec. No.46; dated November 17, 1993. T.D. 93-88 clearly states that “[f]ootwear is designed to be a ‘protection’ against water… only if it is substantially more of a ‘protection’ against those items than the usual shoes of that type.” While T.D. 93-88 provides initial guidance as to what “substantially more” of a “protection” entails, it also provides that footwear that is a “protection against water” includes, but is not limited to, “[a]ny item which will keep your feet dry if you linger in a pool of water which is more than 2 inches deep.”
In HQ 967509, CBP utilized T.D. 93-88 to conclude that the hiking boot (“Quest”) was not protective against water. CBP noted that “[t]he entire shoe d[id] not have waterproof features and will not keep the foot any drier than other hikers.” Protestant relies solely on the aforementioned conclusion without context to suggest that T.D. 93-88 requires an analysis of the entire piece of footwear to determine water resistance. Reliance on a single line of text, without context, leads to erroneous interpretations. In fact, in HQ 967509, CBP noted that the “utilization of certain ‘waterproof’ pieces of material in the upper d[id] not render the shoe water proof or resistant any more than other hikers.” CBP also explicitly stated that “[u]pon review of the same, we [] concluded that the Quest is not substantially more waterproof than ordinary hiking boots.” Taken in context, CBP’s conclusion in HQ 967509 is clear – there was nothing about any piece of the boot at issue that rendered it water protective, especially when compared to other similar products. Thus, CBP affirmed T.D. 93-88’s definition of “protection,” which requires that footwear be “substantially more of a protection” against water, oil or cold or inclement weather than the usual shoes of that type. This line of reasoning is supported by HQ H249657, dated October 23, 2014, where CBP held that a running shoe was not water protective. Specifically, CBP referenced its finding in HQ 967509 that “a below-the-ankle hiking shoe was not a ‘protection’ under the T.D. 93-88’s definition because it was not substantially more water resistant than ordinary hiking boots.”
In this case, the six styles of footwear are water protective within the recognized definition of T.D. 93-88. CBP analyzed all six styles of footwear at-issue and subjected each product to the “two-inch test” enumerated in T.D. 93-88. Namely, to test whether or not the product “will keep your feet dry if you linger in a pool of water which is more than 2 inches deep”, the products were submerged in two inches of water to see if water would seep into them. In the case of each of the six styles of footwear at-issue, no water entered the boots when submerged in water. Therefore, unless the six styles of footwear are found to meet the enumerated exceptions in T.D. 93-88, their passage of the “two-inch test” is sufficient proof of their water protection under the definition of T.D. 93-88 as applied to subheading 6404.19.20, HTSUS.
This case is similar to NY N276489, dated July 8, 2016. In NY N276489, in response to the manufacturer’s claim that the boot at-issue was not waterproof, and was therefore not “protective,” CBP disagreed. Specifically, in classifying the products under subheading 6404.19.20, HTSUS, CBP found that the boots at-issue met the T.D. 93-88 definition of footwear that “will keep your foot dry if you linger in a pool of water which [is] more than [2] inches deep”, without exception. Similarly to the six styles of footwear at-issue here, the boots in N276489 had “rubber/plastic sidewalls over two inches high.” CBP opined that this physical characteristic “provides protection against water” in its own right, but also demonstrated that it provided substantially more protection against water than other boots.
Demonstrated by both physical and visual examination, the six styles of footwear at-issue will “keep your feet dry if you linger in a pool of water which is more than 2 inches deep.” Unless an enumerated exception applies, meeting this T.D. 93-88 definition for “protection” against water is sufficient for classification under subheading 6404.19.20, HTSUS. Protestant admits that three of the four enumerated exceptions do not apply; however, Protestant claims that the six styles of footwear meet the exception that “in normal use, water will get in over the top of the shoe or boot.” Specifically, Protestant claims that wearing the footwear at-issue at issue would allow for “heavy rain or water from [] snow [to] penetrate” the textile upper of the boots. Protestant asserts that this alone satisfies the T.D. 93-88 exception. We disagree for two reasons.
First, as the Protestant notes, two rulings have held that footwear known as “bean boot bottoms” are substantially more of a protection against water than other boots and are therefore considered protective under T.D. 93-88. See, e.g., HQ W968301, dated March 13, 2007; and N247430, dated November 29, 2013. The six styles of footwear at-issue possess definitive characteristic similarities to those in the cases cited by Protestant – in that they possess a molded bottom and textile uppers. As stated by CBP in NY N247430, “[c]ustoms has previously ruled that footwear with a molded rubber or plastics bottom that covers the sides and top of the foot [], is substantially more of a protection against those elements, i.e., water, than the usual footwear of that type and is therefore considered ‘protective’ for tariff purposes.” While Protestant concedes these facts, they continue to assert, without further support, that HQ 967509 requires an analysis of the entire boot. As a result, Protestant contends that “the faulty methodology” applied in HQ W968301 and NY N247430 should not be applied here. As discussed, HQ 967509 does not stand for an analysis of the entire boot as Protestant suggests; rather the definitions set forth in T.D. 93-88. As a result, HQ W968301 and NY N247430 can be applied to support the assertion that footwear with a molded bottom, such as those at-issue here, are considered water protective under T.D. 93-88 without exception.
Second, exception b) to the “two-inch test” as enumerated in T.D. 93-88 is clear: it applies to items which keep the feet dry if you linger in a pool of water which is more than 2 inches deep unless “[i]n normal use, water will get in over the top of the shoe or boot, e.g., skindiving and windsurfing boots, and molded rubber beach slippers.” By providing such specific examples, it is evident to see where the exception claimed by Protestant was meant to apply. Skindiving boots, windsurfing boots, and molded rubber beach slippers each have the potential to satisfy the “two-inch test” by virtue of each having a two-inch molded bottom to protect the bottom of the foot. However, the remaining construction of a skindiving or windsurfing boot is a mesh-like material, whereas rubber beach slippers have functionally no other material. While each could pass the “two-inch test”, it would be puzzling to suggest that either skindiving or windsurfing boots, or rubber slippers, are “protective” against water especially when considering their “normal use” and proximity to water. As such, the six styles of footwear at-issue are not excepted under T.D. 93-88.
The six styles of footwear at-issue satisfy the T.D. 93-88 definition for “protective” against water, without exception. When tested by CBP, the six styles of footwear at-issue passed the “two-inch test” indicative of “protection” against water. As such, each style demonstrated that it was “substantially more” of a “protection” against water under the definitions of T.D. 93-88. Having met the definition of “protection” as enumerated in T.D. 93-88, we find that the six styles of footwear at-issue are water protective and are properly classified in subheading 6404.19.20, HTSUS.
HOLDING:
By application of GRI 1, the subject styles of footwear are classified 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.” The general, column one, rate of duty is 37.5% ad valorem.
You are instructed to DENY the protest.
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 CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division