Revocation of New York Ruling Letter N238529; textile shoe covers

HQ H243639 July 07, 2014 CLA-2 OT:RR:CTF:TCM H243639 CkG CATEGORY: Classification TARIFF NO: 6307.90.98 Ms. Sandra Tovar CST, Inc.500 Lanier Avenue, W. Suite 901 Fayetteville, GA 30214 RE: Revocation of New York Ruling Letter N238529; textile shoe covers Dear Ms. Tovar: This is in response to your letter dated April 30, 2013, on behalf of your client, Wells Lamont Industry, LLC, requesting the reconsideration of New York Ruling Letter N238529, issued to you on March 21, 2013. In NY N238529, CBP classified two styles of textile shoe covers. Style “A” was classified in heading 6402, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “other footwear with outer soles and uppers of plastics.” Style “B” was classified in heading 6307, HTSUS, which provides for “other made up articles”. Only style “A” is at issue in this reconsideration request. A sample of style “A” was provided and will be returned. We have considered your arguments and our decision follows. 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 N238529 was published on April 30, 2014, in Volume 48, Number 17, of the Customs Bulletin. No comments were received in response to this Notice. FACTS: As described in NY N238529, Style “A” is a slip-on shoe cover to be used “in a semi-clean environment for aircraft assembly.” The shoe cover does not have an applied outer sole and is made of a textile materials base with 1mm poly-vinyl chloride (PVC) “micro dots” adhered to its bottom to reduce slippage. These micro dots are closely interspersed (approximately .5mm apart) and extend upward to substantially cover the entire upper. These PVC micro dots are considered the constituent material having the greatest external surface area. The top of the shoe cover is elasticized to secure the shoe cover to the foot. It does not have a foxing or foxing-like band. The shoe cover is constructed of 100% cotton knit fabric. ISSUE: Whether the Style “A” shoe cover is classified in heading 6307, HTSUS, as an “other” made up article, or in heading 6402, HTSUS, as other footwear with outer soles and uppers of plastics. 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: 6307: Other made up articles, including dress patterns: 6307.90: Other: Other: 6307.90.98: Other… * * * * 6402: Other footwear with outer soles and uppers of rubber or plastics: Other footwear : 6402.99: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: 6402.99.49: Other . . . * * * * Note 1 to Chapter 64, HTSUS, provides, in pertinent part, as follows: This chapter does not cover… Disposable foot or shoe coverings of flimsy material (for example, paper, sheeting of plastics) without applied soles. These products are classified according to their constituent material; * * * * In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General Explanatory Note to Chapter 64 provides, in pertinent part, as follows: GENERAL With certain exceptions (see particularly those mentioned at the end of this General Note) this Chapter covers, under headings 64.01 to 64.05, various types of footwear (including overshoes) irrespective of their shape and size, the particular use for which they are designed, their method of manufacture or the materials of which they are made. For the purposes of this Chapter, the term “ footwear ” does not, however, include disposable foot or shoe coverings of flimsy material (paper, sheeting of plastics, etc.) without applied soles. These products are classified according to their constituent material. The Chapter includes: … (10)  Disposable footwear, with applied soles, generally designed to be used only once. … (C)   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). In the case of footwear made in a single piece (e.g., clogs) without applied soles, no separate outer sole is required; such footwear is classified with reference to the constituent material of its lower surface. (D)  For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. The upper is the part of the shoe or boot above the sole. However, in certain footwear with plastic moulded soles or in shoes of the American Indian moccasin type, a single piece of material is used to form the sole and either the whole or part of the upper, thus making it difficult to identify the demarcation between the outer sole and the upper. In such cases, the upper shall be considered to be that portion of the shoe which covers the sides and top of the foot. The size of the uppers varies vary much between different types of footwear, from those covering the foot and the whole leg, including the thigh (for example, fishermen’s boots), to those which consist simply of straps or thongs (for example, sandals). * * * * Pursuant to Note 1(a) to Chapter 64, which governs the classification of disposable shoe coverings in Chapter 64, a disposable shoe covering made of flimsy material and lacking an applied sole is precluded from classification as footwear of Chapter 64. Conversely, as noted in the General Explanatory Note to Chapter 64, flimsy disposable shoe covers are classified in Chapter 64, as “footwear”, if they do have an applied sole. The instant shoe cover is constructed of knit cotton fabric. Although the fabric appears durable, in the context of footwear, it provides no cushioning and little protection against the elements or the ground. Thus, we consider the material of style “A” to be “flimsy” for the purposes of Note 1(a) to Chapter 64. Moreover, the shoe cover lacks an applied sole, and thus cannot be properly classified as footwear pursuant to Note 1(a) and Note 1(b). A sole is defined in the General Explanatory Note to Chapter 64 as the part of the footwear in contact with the ground. The Merriam-Webster Dictionary Online and the Oxford English Dictionary Online, respectively, further define “sole” as follows: a : the undersurface of a foot b : the part of an item of footwear on which the sole rests and upon which the wearer treads http://www.merriam-webster.com/dictionary/sole. a. The bottom of a boot, shoe, etc.; that part of it upon which the wearer treads (freq. exclusive of the heel); one or other of the pieces of leather or other material of which this is composed (cf. insole n.   and outsole n.). Also, a separate properly-shaped piece of felt or other material placed in the bottom of a boot, shoe, etc. http://www.oed.com/view/Entry/184121?rskey=VW5Gs4&result=1#eid. In determining whether a shoe covering has an applied sole pursuant to Note 1 to Chapter 64, we look to whether a line of demarcation between the sole and the upper can be identified. A 'line of demarcation' exists if one can indicate on the item the line along which the sole ends and the upper begins. Footwear made of a single material, with no additional, applied layer or covering on the bottom (e.g., an infant’s bootie, or the other styles of shoe covers classified according to their component material, in heading 3926 (articles of plastic) or 6307 (articles of textile)) does not have a line of demarcation distinguishing the sole from the remainder of the item. In the instant case, the shoe cover is made of a single material, there is no additional layer or covering, and there is no line of demarcation separating the sole from the upper. Hence, the shoe cover lacks an applied sole and is excluded from Chapter 64, HTSUS. As noted in HQ 967851, dated November 18, 2005, mere patches, pads, dots, strips, etc., attached to a sock’s underfoot area, do not, in and of themselves, constitute an applied sole. As the shoe cover is a made up article of textile and it is not more specifically described elsewhere in the tariff, it is classified in heading 6307, HTSUS. Pursuant to the above analysis, CBP has consistently classified shoe covers made of a single material—i.e., lacking an applied sole—in heading 6307, HTSUS, or heading 3926, HTSUS, according to their constituent material. See e.g., NY N171076, dated June 21, 2011; NY N053260, dated March 16, 2009; NY N012508, dated July 6, 2007; NY F86712, dated May 11, 2000; NY F88501, dated June 23, 2000; NY E82610, dated June 16, 1999; and NY A89868, dated December 6, 1996. HOLDING: By application of GRI 1, the textile shoe cover style “A” is classified in heading 6307, HTSUS, specifically subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2013, column one, general rate of duty is 7% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/ EFFECT ON OTHER RULINGS: NY N238529, dated March 21, 2013, is hereby modified. Sincerely, Myles B. Harmon, Director, Commercial and Trade Facilitation Division