CLA-2 OT:RR:CTF:TCM H237685 CkG
TARIFF NO: 6405.90.90
Michael O’Rourke
Rode & Qualey
Attorneys at Law
55 West 39th St.
New York, NY 10018
RE: Revocation of New York Ruling Letter N234957; classification of a rain boot
Dear Mr. O’Rourke
This is in response to your letter dated December 10, 2012, on behalf of your client, Rich Footwear Group, requesting the reconsideration of New York Ruling Letter N234957, dated November 26, 2012. In NY N234957, CBP classified the “Angry Birds Rain Boot”, style no. AA 300671, in heading 6401, HTSUS, as 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.
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, notice proposing to revoke NY N234957
was published on March 4, 2015, in Volume 49, Number 9 of the Customs Bulletin. One comment was received in opposition to this notice.
FACTS:
NY N234957 described the subject merchandise as follows:
The submitted half-pair sample identified as style number AA300671 “Angry Birds Rain Boot,” is a children’s over-the-ankle/below-the-knee “waterproof” pull on boot. The boot is approximately 8 ½ inches in height, does not incorporate a metal toe-cap and is lined with textile material. It has two pull-on loops on either side of the top of the upper and features pictures of bird faces imprinted on it. In your submission, you state that the external surface of the upper is 100% rubber and that the injection molded sole/outer sole (which is attached to the upper by vulcanization or cement) has a combination of rubber and “coated leather material” on the outer sole.
In your submission, you state that the external surface of the upper is 100% rubber and that the injection molded sole/outer sole (which is attached to the upper by vulcanization or cement) has a combination of rubber and “coated leather material” on the outer sole. You further submit a video clip demonstrating how the coating is applied to the leather; in the video, cut leather pieces are subjected to a machine perforation process which creates tiny holes, or pores, throughout the leather. The leather pieces are placed into an injection molding machine. During the molding process, a small amount of plastic oozes through the pores onto the surface of the leather, giving the coated leather a rubber or plastic appearance.
ISSUE:
Whether the instant rain boots have an outer sole “of rubber” and thus 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 HTSUS headings at issue 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…
* * *
6405: Other footwear:
6405.90: Other:
6405.90.90: Other…
* * * * *
Note 4 to Chapter 64 provides as follows:
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.
* * * * *
Note 4 to Chapter 64 provides, in pertinent part, that the constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground. In NY N234957, after examining the outer sole of the Angry Birds boot, CBP determined that there was no evidence of leather on the exterior of the outer sole in contact with the ground. Consequently, CBP found that the constituent material of the outer sole was rubber or plastics.
However, further examination of a cross section of the outer sole under a microscope revealed that the plastic in contact with the ground was in fact only a thin coating over a layer of leather, as you describe in your submission. The outer sole of the rain boot is thus a material constructed of a plastic coated leather and, thus, the constituent material of the outer sole is a composite material of plastic coated leather.
Because the boot’s outer sole consists of two materials, plastic and leather, GRI 3(b) must be consulted to determine the outer sole’s essential character. GRI 3(b) provides that:
[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
It is our position that, under GRI 3(b), the essential character of the plastic coated leather is the leather itself. The leather gives the shoe's outer sole its form and shape. The plastic coating merely enhances the leather's durability and water resistant qualities. Therefore, the outer sole of the subject boot is leather.
The comment received in opposition to the proposed revocation disputes the application of GRI 3(b) in the instant case, alleging that a finding that the instant footwear has an outer sole of leather renders Note 4 to Chapter 64 meaningless. The commenter argues that the material having the greater surface area in contact with the ground is plastic, and that the constituent material of the outer sole is therefore plastic pursuant to Note 4 to Chapter 64 and GRI 1. However, the commenter’s argument does not take into account that the material of the outer sole is a composite material of plastic coated leather. The application of GRI 3(b) to outer soles consisting of a plastic coated leather is consistent with CBP’s long held position that unless there is a special note in chapter 64 (such as note 3 concerning plastic coated textile or note 4(a) concerning multiple materials), the "external surface" of an upper or sole is determined by the composite material (not layer) which is topmost. See e.g., HQ 950568, dated January 6, 1992, which held, pursuant to GRI 3(b), that a women’s shoe with a plastic coated leather sole was classified in subheading 6404.20.40, HTSUS, as footwear with outer soles of leather. Similarly, in HQ 089572, dated April 13, 1992, CBP classified a golf shoe with an upper of a plastic coated leather material in heading 6403, pursuant to Note 4(b), EN (D) to Chapter 64, and GRI 3(b); See also HQ 950680, dated April 16, 1992; HQ 088390, dated February 19, 1991; NY N256496, dated December 2, 2014; NY N233993, dated November 2, 2012; NY N099942, dated April 30, 2010.
Consequently, based upon GRI 3(b), Note 4 to Chapter 64, and Explanatory Note (D) to Chapter 64, the instant boots thus have an outer sole of leather, and are correctly classified in subheading 6405.90.90, HTSUS, as other footwear.
HOLDING:
By application of GRIs 1, 3(b) and 6, the instant rain boots are classified in heading 6405, HTSUS, specifically subheading 6405.90.90, HTSUS, which provides for “Other footwear: Other: Other.” The 2015 column one, general rate of duty is 12.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N234957, dated November 26, 2012, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division