HQ H255893
CLA-2 OT:RR:CTF:TCM HQ H255893 TSM
Port Director, Port of New York/Newark
U.S. Customs and Border Protection
1100 Raymond Blvd.
Suite 402
Newark, NJ 07102
Attn: Jennifer Tagliaferro, Supervisory Entry Specialist
Re: Protest and Application for Further Review No: 4601-13-101619; Classification of winter boots for children
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 4601-13-101619, timely filed on October 8, 2013, on behalf of Marshall’s of MA, Inc. (“Marshall’s” or “Protestant”) regarding the tariff classification of winter boots for children under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of winter boots for children. At issue are style numbers AY-1105 (Snowcharge) and AY-1108 (Board). Both styles measure approximately 6 ¾ inches tall and have rubber or plastics uppers and rubber or plastics outer soles. More than 3 cm above the top of the outer sole both styles are of non-molded construction. Specifically, style AY-1108 is constructed entirely of sewn-together rubber or plastic pieces which are “functionally stitched” and would come apart if the threads were removed. Style AY-1105 is constructed of laminated layers of rubber or plastics over textile and sewn-together rubber or plastic pieces which are “functionally stitched.” Both styles’ shafts are lined with lining material measuring almost ½ inch thick uncompressed. Moreover, although each style features a thickly lined footbed, the area over the top of the foot has thin lining. Both styles display a dime-sized label on the lateral side of the shaft that shows the brand “KHOMBU®.” In addition, style number AY-1108 (Board) features “KHOMBU®” on the shoe tongue. Both styles feature a large hangtag claiming that the boots are “WARM,” made with “THERMOLITE®,” are “FLEECE LINED,” and “WEATHER PROOF.” Style number AY-1108 (Board) also features hangtags stating that the “KHOMBU®” brand is the “OFFICIAL SUPPLIER OF THE US SKI TEAM” and that a specifically engineered material, “Thermolite®,” a registered trademark of “INVISTA,” is designed to provide a “thermal barrier.” Samples of both styles of the subject merchandise were received and examined by this office.
The two samples of the subject merchandise were also examined by U.S. Customs and Border Protection’s (“CBP’s”) National Import Specialist (“NIS”) for footwear. To determine whether water would penetrate the subject merchandise, the NIS submerged the samples in a sink that contained two inches of water to simulate a puddle of that depth. The water did not enter style AY-1105 but did enter style AY-1108.
The subject merchandise was originally entered on August 30, 2013 under 6402.91.5090, HTSUS. HTSUS 6402.91.50 provides for “Other footwear with outer soles and uppers predominately of rubber or plastics: Other footwear: Covering the ankle: 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: Other.” Protestant claims that the correct classification is in subheading 6402.91.40, HTSUS, which provides for “Other footwear with outer soles and uppers predominately of rubber or plastics: Other footwear: Covering the ankle: 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 (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) 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.”
ISSUE:
Whether the subject footwear is properly classified under subheading 6402.91.40, HTSUS, as footwear with over 90% ESAU rubber or plastics and not protective against water or cold, unless from a point 3 cm above the top of the outer sole it is entirely of non-molded construction formed by sewing the parts together, or in subheading 6402.91.50 as protective footwear.
LAW AND ANALYSIS:
Initially, we note that the matter protested 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 of the first entry. (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. 4601-13-101619 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letters (NY) N183017, dated September 23, 2011 and (NY) N197074, dated January 6, 2012.
Merchandise imported into the United States is classified under 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 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.91 Covering the ankle
Other:
6402.91.40 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 (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) 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:
6402.91.50 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
We begin by noting that this dispute is at the eight-digit level of classification. We agree with Protestant that the subject footwear is described by the terms of subheading 6402.91, HTSUS. Thus, the dispute is over whether the subject merchandise is properly described as “having uppers of which over 90 percent of the external surface area … is rubber or plastics…except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) 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” within the meaning of subheading 6402.91.40, HTSUS. Thus, subheading 6402.91.40, HTSUS, provides for footwear (1) having uppers with external surface area measuring over 90% rubber or plastic; (2) not having a foxing or foxing-like band applied or molded at the sole and overlapping the upper; and (3) not protective against water or cold, unless its uppers, from a point 3 cm above the top of the outer sole, are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching.
The subject merchandise satisfies the first requirement because both styles have uppers that are made entirely of rubber and plastic. The subject merchandise also satisfies the second requirement, since neither style has a foxing or a foxing-like band applied or molded at the sole and overlapping the upper. Accordingly, whether the subject merchandise is classifiable under 6402.91.40, HTSUS, will turn on whether it satisfies the third requirement, namely whether or not it is protective against water or cold, its uppers, from a point 3 cm above the top of the outer sole, are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching.
Non-protective footwear of 6402.91 is classified in subheading 6402.91.40 by virtue of having uppers of which over 90% of the external surface area is rubber or plastics. Protective footwear may also be classified under subheading 6402.91.40 if the following “exceptions to the protective exclusions” (parenthetical exceptions) are met: (1) it must be entirely of non-molded construction formed by sewing the parts together from a point 3 cm above the top of the outer sole; and (2) the outer surface of the uppers must contain a substantial portion of exposed functional stitching.
Upon examination of the subject boots, CBP found that they were entirely of non-molded construction and had substantial exposed functional stitching. Accordingly, since both styles of boots meet the construction requirements of subheading 6402.91.40, HTSUS, both styles are classified there. See T.D. 93-88.
HOLDING:
By application of GRI 1, the subject footwear is classified in heading 6402, HTSUS. It is specifically classified in subheading 6402.91.40, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: 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 (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of the non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) 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.
You are instructed to APPROVE 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 reliquidation 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division