OT:RR:CTF:FTM H331495 MJD
TARIFF NO: 6401.92.9060; 9903.88.15
Ms. Sheila Sumner
Ceva International
2850 Earhart Court
Hebron, KY 41048
RE: Affirmation of NY N329311; Tariff Classification of Footwear from China
Dear Ms. Sumner,
This is in response to your request, dated February 28, 2023, for reconsideration of New York Ruling Letter (“NY”) N329311, dated December 9, 2022, on behalf of your client, Marolina Outdoor, regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of the “Rogue Wave” outdoor boot manufactured in China.
In NY N329311, U.S. Customs and Border Protection (“CBP”) classified the “Rogue Wave” boot under heading 6401, HTSUS, as “Waterproof footwear with outer soles and uppers of rubber or plastics.” You claim that the merchandise is properly classified in heading 6405, HTSUS, as “Other footwear.” We have reviewed NY N329311 and determined that the classification of the “Rogue Wave” boot in heading 6401, HTSUS, is correct, and for the reasons set forth below we are affirming that ruling.
FACTS:
NY N329311 described the subject merchandise as follows:
Style “Rogue Wave” is identified by you as a unisex boot intended for use during outdoor activities such as fishing, hiking, or boating. The above-the-ankle, below-the-knee, slip-on boot, is said to have been manufactured by an exclusively adhesive construction and includes a foxing band. The material composition breakdown provided by you shows the constituent material having the greatest surface area of the upper to be predominantly rubber/plastics, with the balance (more than 10 percent) of elastic gore (textile for classification purposes) on the medial and lateral sides, at the top. The rugged outer sole is composed of rubber or plastic to which you state a leather flocking has been applied, covering the majority of the surface area in contact with the ground. The leather application is microns thin and not visible.
In your request for reconsideration, you state that the lack of a physical sample did not clearly demonstrate the overall design and construction of the “Rogue Wave” boot and provided two samples of the boot. One sample of a flocked boot and another sample of a boot with no flocking. You provide that the boot has leather flocking that is .01-.02 mm thick and cost an additional $1.30 to manufacture the boot with the leather flocking. It is your opinion that because the flocking completely covers the sole of the boot and requires an additional cost to the boot that it should be classified in subheading 6405.90.9060, HTSUSA Annotated (“HTSUSA”), which provides for “Other footwear: Other: Other: Other.”
ISSUE:
Whether the “Rogue Wave” boot has an outer sole “of rubber or plastics” and thus is properly classified in heading 6401, HTSUS, or whether the outer sole is of leather and thus classified as “other footwear” in heading 6405, HTSUS?
LAW AND ANALYSIS:
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.
The 2023 HTSUS provisions under consideration 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:
6401.92: Covering the ankle but not covering the knee:
Other:
6401.92.90: Other…
6401.92.9060: Other…
* * *
6405: Other footwear:
6405.90: Other:
6405.90.90: Other…
6405.90.9060: Other…
* * *
Note 4 to Chapter 64, HTSUS, provides as follows:
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.
Additional U.S. Note 3 to Chapter 64, HTSUS, provides as follows:
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.
* * *
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While not legally binding, 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).
EN 41.15 provides, in pertinent part, that:
(I) Composition leather
This group covers only composition leather with a basis of natural leather or leather fibres. It is to be noted that it does not apply to imitation leathers not based on natural leather, such as plastics (Chapter 39), rubber (Chapter 40), paper and paperboard (Chapter 48) or coated textile fabrics (Chapter 59).
Composition leather, which is also known as “bonded leather”, may be made by various processes:
The General ENs to Chapter 64, HTSUS, provides, in pertinent part, that:
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).
EN 64.01 states, in pertinent part, that:
This heading covers waterproof footwear with both the outer soles and the uppers (see General Explanatory Note, paragraphs (C) and (D)), of rubber (as defined in Note 1 to Chapter 40), plastics or textile material with an external layer of rubber or plastics being visible to the naked eye (see Note 3 (a) to this Chapter), provided the uppers are neither fixed to the sole nor assembled by the processes named in the heading.
The heading includes footwear constructed to protect against penetration by water or other liquids and would include, inter alia, certain snow-boots, galoshes, overshoes and ski-boots.
Footwear remains in this heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric with an external layer of plastics being visible to the naked eye; for the purpose of this provision no account should be taken of any resulting change of colour).
* * *
CBP has previously addressed the tariff classification of footwear with uppers of rubber or plastics and soles of rubber or plastics, with some type of leather material applied to the sole of the footwear. Where the outer sole of the footwear is covered with only a dusting of leather flocking or a microns-thin level of leather flocking, this application of leather flocking should be viewed as a “similar attachment” as described in Note 4(b) to Chapter 64, HTSUS, and will be disregarded for purposes of determining the constituent material of the outer sole having the greatest surface area in contact with the ground. For example, in NY N032742, dated July 17, 2008, CBP classified a women’s slip on shoe that had a man made fiber textile upper and a sole made of rubber/plastics to which leather dust had been applied in heading 6404, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” In making that determination, CBP stated that the thin layer of leather dust is a “similar attachment” to the textile material, which has been “applied to but not embedded in the sole’ cited in [the General ENs to Chapter 64, HTSUS] and is therefore not taken into account in determining the constituent material of the outer sole.” As a result, CBP found that the constituent material of the outer sole of the women’s slip on shoe comprising the greatest external surface area in contact with the ground was rubber/plastics.
However, when the outer sole of footwear consists of leather or composition leather also known as “bonded leather” (see ENs 41.15), and the leather component has the greatest surface area in contact with the ground in accordance to Note 4(b) to Chapter 64, HTSUS, the outer sole of such footwear should be considered an outer sole of leather or composition leather for tariff classification purposes. For example, in NY N032742, discussed above, CBP classified a girl’s shoe with a plastic upper and an outer sole comprised of plastic and bonded leather in heading 6405, HTSUS, as “Other footwear.” The shoe had an outer sole with a “thin layer (Approximately 1/16 inch) of material identified as ‘bonded leather’ adhered to the walking surface accounting for the greatest external surface area in contact with the ground, when in use.”
Likewise, in Headquarters Ruling Letter (“HQ”) H237685, dated May 18, 2015, which revoked NY N234957, dated November 26, 2012, CBP classified the children’s “Angry Birds Rain Boot” in heading 6405, HTSUS. The boot had an upper of 100% rubber and an outer sole made of plastic coated leather material. Further examination under a microscope revealed that the plastic in contact with the ground was only a thin coating over a layer of leather. CBP stated that “the leather [gave] the shoe’s outer sole its form and shape. The plastic coating merely enhance[d] the leather’s durability and water resistant qualities.” As a result, CBP found that the outer sole of the boot was of leather and classified the rain boot in heading 6405, HTSUS.
Similarly, in NY N162736, dated May 26, 2011, CBP classified a boy’s pull-on rainboot with a rubber upper and a plastic outer sole containing bonded leather in heading 6405, HTSUS. The bonded leather of the sole of the shoe was comprised of “a minimum of 75% leather material which had been chopped, combined with cement and pressed into sheets, thereby constituting composition leather for tariff classification purposes.” CBP found that the composition leather was the constituent material having the greatest surface area in contact with the ground. Also, in NY N259275, dated December 5, 2014, CBP classified a slip-on garden boot with uppers of rubber or plastics, and an outer sole of composition leather overlay that covered the underlying rubber or plastic outer sole in heading 6405, HTSUS. CBP determined that the composition leather consisted of over 60 percent by weight and was the constituent material of the outer sole.
Likewise, in NY N245541, dated September 25, 2013, CBP classified a men’s hunting boot with a rubber or plastics upper and a rubber or plastics outer sole with 1 mm thick piece of composition leather embedded into the forefoot section in heading 6405, HTSUS. CBP provided that the rubber or plastic portion of the sole did not have contact with the ground and determined that the composition leather of the forefront section was the constituent material having the greatest external surface in contact with the ground. Also, in NY N237725, dated February 22, 2013, CBP classified a women’s pull-on rain boot with a molded rubber or plastics upper and a rubber or plastics outer sole with 8 mm thick composition leather incorporated into it, covering over 50 percent of the surface area in contact with the ground in heading 6405, HTSUS. CBP found that the composition leather was found to be the constituent material having the greatest external surface area in contact with the ground when worn and classified the footwear in heading 6405, HTSUS.
In the above examples of footwear ultimately classified in heading 6405 as footwear with outer soles of “other than rubber or plastics,” the application of additional materials occupying the majority of the external surface, was substantial, visible, and tactile, and in some cases having the character of leather or composition leather. We have examined the physical samples of the “Rogue Wave” boot with the leather flocking and the boot without the leather flocking and have determined that the boot is correctly classified in heading 6401, HTSUS, as footwear with outer soles and uppers of rubber or plastics. The “Rogue Wave” boot was manufactured by a process that did not introduce holes and meets the requirements of Note 3 to Chapter 64, HTSUS, as “waterproof footwear” since the boot is designed to protect against the penetration of water.
Moreover, while you state that the leather flocking is .01-.02 mm thick and covers the majority of the sole, we find that this application of leather flocking is microns-thin and incidental. The application of leather flocking is for reinforcement purposes only and is not embedded in the rubber or plastic outer sole. Thus, the leather flocking on the outer sole of the footwear is a “similar attachment” in accordance to Note 4(b) to Chapter 64, HTSUS, and the General ENs to Chapter 64, HTSUS. As a result, no account of the leather flocking is considered in determining the constituent material of the outer sole. Therefore, the constituent material of the outer sole comprising the greatest external surface area in contact with the ground, when in use, of the “Rogue Wave” boot is the rubber/plastic component. As a result, the “Rogue Wave” boot is classified in heading 6401, HTSUS, as footwear with outer soles and uppers of rubber or plastics.
The “Rogue Wave” boot is similar to the women’s slip on shoe in NY N032742, which had an upper of man made fiber textile and a sole made of rubber/plastic to which leather dust had been applied to. In NY N032742, CBP determined that the thin layer of leather dust applied to the rubber/plastic sole was a “similar attachment” in accordance with Note 4(b) to Chapter 64, HTSUS, and stated that the leather dust did not need to be taken into account in determining the constituent material of the outer sole. Likewise, we find that the layer of leather flocking applied to the rubber/plastic outer sole of the “Rogue Wave” boot to be a “similar attachment” in accordance with Note 4(b) to Chapter 64, HTSUS, and therefore does not need to be taken into account to determine the constituent material of the outer sole.
In HQ H237685, CBP found that a boot with an upper of 100% rubber and an outer sole made of plastic coated leather material was classified in heading 6405, HTSUS. CBP determined that the plastic coating was a thin layer over the leather material and stated that “the leather [gave] the shoe’s outer sole its form and shape. The plastic coating merely enhance[d] the leather’s durability and water resistant qualities.” While the boot was ultimately classified in heading 6405, HTSUS, the analysis in HQ H237685 can be applied to the “Rogue Wave” boot at issue. Similarly, we find that the rubber or plastic outer sole of the “Rogue Wave” boot is what gives the sole of the shoe its form and shape, and the microns-thin layer of leather flocking applied to the “Rogue Wave” boot over the plastic/rubber sole merely enhances the durability and water resistant qualities of the “Rogue Wave” boot.
Accordingly, because the “Rogue Wave” boot is waterproof footwear with outer soles and uppers of rubber or plastics it is correctly classified in subheading 6401.92.9060, HTSUSA, 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.”
HOLDING:
For the above reasons, we affirm NY N329311, dated December 9, 2022, which correctly classified the “Rogue Wave” boot in subheading 6401.92.9060, HTSUSA, 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.” The 2023 column one, general rate of duty is 37.5 % ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 6401.92.9060, HTSUSA, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 6401.92.9060, HTSUSA, listed above.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division