Protest and Application for Further Review No. 2006-13-100005; Classification of below-the-ankle, closed toe and closed heel slip-on footwear.

November 17, 2015 HQ H242649 CLA-2 OT:RR:CTF:TCM HQ H242649 TSM CATEGORY: Classification TARIFF NO.: 6401.99.30 Port Director, Port of Memphis, Tennessee U.S. Customs and Border Protection 3150 Tchulahoma Road Suite 1 Memphis, TN 38118 Attn: Donna Boyd, Import Specialist Re: Protest and Application for Further Review No. 2006-13-100005; Classification of below-the-ankle, closed toe and closed heel slip-on footwear. Dear Port Director: The following is our decision regarding Protest and Application for Further Review No. 2006-13-100005, timely filed on December 28, 2012, on behalf of Volt Sports LLC (“Protestant”) regarding the tariff classification of below-the-ankle, closed toe and closed heel slip-on shoes under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the subject merchandise was received and examined by this office and is being returned to you. FACTS: The subject merchandise consists of “Comfort” footwear style Nos. LAN-0049-1 and LAN-0049-2, described as below-the-ankle, closed toe and closed heel slip-on waterproof footwear, made from injection molded polyurethane. Both styles have EVA in-soles and raised ridges at the heels, the exterior height of which measures approximately 2-1/8 inches above a flat surface (when not being worn or otherwise compressed). The outer soles of the subject footwear also have sixteen rounded cone-shaped features (evenly spaced at the forward and rear portions of the sole), each approximately ¾ of an inch in diameter and projecting outward approximately 3/16 of an inch from the surrounding area of the sole. The subject merchandise was originally entered on December 20, 2011 under subheading 6401.99.80, HTSUS, as “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: Other: Other: Other: 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 footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper).” On July 6, 2012, the subject merchandise was liquidated under subheading 6402.99.31, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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: Other.” Protestant claims that the correct classification is, as entered, in subheading 6401.99.80, HTSUS. Images of the subject merchandise are displayed below.

ISSUE: What is the correct classification of the footwear under the HTSUS? 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. 2006-13-100005 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 Headquarters Ruling Letter (HQ) 963224, dated March 22, 2002. Protestant further alleges that the decision against which the protest was filed is inconsistent with another port decision with respect to the same or substantially similar merchandise. 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 2011 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: 6401.99 Other: Other: 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: 6401.99.30 Designed for use without closures * * * Other: 6401.99.80 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 footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper) * * * 6402 Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 6402.99 Other: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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: 6402.99.31 Other To determine whether the subject footwear is classified in heading 6401, HTSUS, as waterproof footwear, or heading 6402, HTSUS, as other footwear, we consider whether it meets the definition of “waterproof footwear.” Additional U.S. Note 3 to Chapter 64, HTSUS, provides the following: 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. Upon review, we find that the subject footwear is “waterproof footwear” within the meaning of Additional U.S. Note 3 to Chapter 64, HTSUS, since it cannot be penetrated by water or other liquids as it is made of injection molded polyurethane by a process which permanently fuses the sole into one piece with the upper, without the use of adhesives or stitching. Accordingly, the subject footwear is described by heading 6401, HTSUS. At the subheading level, for purposes of subheading 6401.99, HTSUS, we consider whether the subject merchandise is “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.” In Treasury Decision (“T.D.”) 93-88, dated October 25, 1993, CBP stated that “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.” See T.D. 93-88. Furthermore, T.D. 93-88 provides, in pertinent part, that: Footwear that is a “protection” against water includes: Any item which will keep your foot dry if you linger in a pool of water which is more than two inches deep unless: It has a rigid, thick, clog bottom but no protective features- or In normal use, water will get in over the top of the shoe or boot… It is a women’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… T.D. 93-88 further provides that generally, open toe/open heel footwear is not 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. CBP has determined the “heel” to be the rearmost boney part of the human foot, the top of which is located just below the Achilles tendon. See HQ 963224, dated March 22, 2002. See also HQ 005083, dated May 19, 2009. Examination of the subject footwear shows that the heel ridge, measured from the top of the uncompressed insole to the top of the ridge, is approximately 1 ¼ of an inch deep and covers the wearer’s heel bone. Accordingly, the subject footwear has closed heels. Moreover, the subject footwear is also designed to be a “protection” against water, within the meaning of T.D. 93-88, since it would keep the wearer’s foot dry while lingering in a pool of water which is more than two inches deep. Furthermore, we note that in normal use water would not get into the subject footwear over the top. T.D. 93-88 defines “slip-on” footwear as footwear which “does not include any shoe with any laces, buckles, straps, snaps, or other closure, which are probably closed, i.e. tied, buckled, snapped, etc., after the wearer puts it on.” The subject footwear meets this definition as it is comprised of a single piece and has no closures. Because the subject merchandise is considered to be waterproof footwear of heading 6401, HTSUS, “protective” as described in the text of subheading 6401.99, HTSUS, and designed without closures, we conclude that the subject footwear is classified in subheading 6401.99.30, HTSUS, 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: Other: Covering the knee: Other: 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: Designed for use without closures.” See NY N236611, dated January 4, 2013; NY N162559, dated May 24, 2011; NY N123836, dated October 13, 2010; NY N117321, dated August 30, 2010; NY N073620, dated August 27, 2009; NY N011317, dated May 24, 2007; NY K80613, dated November 20, 2003; HQ 084361, dated June 21, 1989. Although Protestant argued that the subject footwear is nearly identical to the footwear at issue in HQ 963224 and should therefore be classified in subheading 6401.99.80, HTSUS, we disagree. The footwear at issue in HQ 963224 is open back footwear, with much of the wearer’s heel exposed. As such, unlike the subject footwear, it was not designed as protective footwear. HOLDING: By application of GRIs 1 and 6, the “Comfort” footwear style Nos. LAN-0049-1 and LAN-0049-2 are classified in heading 6401, HTSUS, and specifically in subheading 6401.99.30, HTSUS, 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: Other: Covering the knee: Other: 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: Designed for use without closures.” The 2011 column one, general rate of duty is 25% ad valorem. Since the rate of duty under the classification indicated above is more than the liquidated rate, 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 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, Joanne Roman Stump, Acting Director Commercial and Trade Facilitation Division