Protest and Application for Further Review No 4601-2013-101620; Classification of winter boots for children

HQ H255888 December 12, 2014 CLA-2 OT:RR:CTF:TCM HQ H255888 TSM CATEGORY: Classification TARIFF NO.: 6402.91.40 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: 4601-2013-101620; Classification of winter boots for children Dear Port Director: The following is our decision regarding Protest and Application for Further Review No. 4601-13-101620, 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-1104 (Rumble) and AY-1106 (Panel). Both styles measure approximately 9 inches tall and have rubber or plastics uppers and rubber or plastics outer soles. The uppers are constructed from sewn-together rubber or plastic pieces, which are “functionally stitched,” meaning, if the threads were removed, the pieces would come apart. From a point 3 cm above the top of the outer sole both styles are of non-molded construction, consisting of laminated layers of rubber or plastics over textile. The shafts of the boots are constructed of rubber/plastics foam and faux-fleece lining measuring almost ½ inch thick uncompressed. Although the footbed is thickly lined, the area over the top of the foot is thinly lined with faux-fleece. Both styles feature a label on the lateral side of the shaft measuring approximately 1 inch by 1.5 inches that show the brand “KHOMBU®,” and underneath, the words “FOOTWEAR FOR THE ELEMENTS.” Each style also has three attached hangtags. One mentions the brand is the “OFFICIAL SUPPLIER OF THE US SKI TEAM.” Another states that a specifically engineered material, “Thermolite,” is designed as a “performance insulation” to provide a “thermal barrier.” Finally the largest hangtag claims the boots are “WARM,” made with “THERMOLITE®,” are “FLEECE LINED,” and “WEATHER PROOF.” 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. The NIS submerged the samples in a sink that contained a little over two inches of water to simulate a puddle of that depth. The water did not enter either one of the samples. The subject merchandise was originally entered on August 30, 2013 under subheading 6402.91.50, HTSUS, as “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: Other.” ISSUE: Whether the subject footwear is properly classified under subheading 6402.91.40, HTSUS, as footwear with over 90% ESAU rubber or plastic of non-molded construction from a point 3 cm above the top of the outer sole 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. 4601-13-101620 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 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 CRIs 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, in that the footwear consists of outer soles and uppers of rubber or plastics covering the ankle. The subject merchandise satisfies the first requirement of subheading 6402.91.40, HTSUS, 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 will turn on whether it satisfies the third requirement, namely that it not be 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. 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 d. It is a molded downhill ski boot… Footwear that is a “protection” against cold or inclement weather includes: All items lined with thinsulate, fleece, or foamed plastic which, uncompressed, is more than ½ inch thick. In NY K82126, dated December 30, 2003, CBP found that, consistent with the definition found in T.D. 93-88, footwear lined with cellular rubber/plastic lining which in its uncompressed condition measures over 1/2 inch in thickness, is “protective” for footwear classification purposes. See NY K82126. On the contrary, in NY N208459, dated March 23, 2012, CBP found footwear featuring shaft lined with faux fur and foot lined with a tricot fabric, backed with rubber or plastics foam which was less than 1/2 of an inch in thickness, uncompressed, not to be “protective” against weather or inclement weather. See NY N208459. In the present case, although both styles of footwear under consideration feature several hangtags with claims that they are “WARM,” made with “THERMOLITE®,” are “FLEECE LINED” and “WEATHER PROOF,” and display labels stating “FOOTWEAR FOR THE ELEMENTS,” neither one has padding over the toes or lining measuring more than 1/4 of an inch in thickness, uncompressed, throughout. Accordingly, we find that the subject footwear would not be “protective” against cold or inclement weather. In HQ W968301, dated March 13, 2007, CBP classified boots with a “heavily treaded outer sole made of thick rubber” that measured three inches and found that “these treads are designed to offer maximum traction in slippery or wet conditions… this [sole] will offer enough protection to allow the wearer to linger in a pool of water which is more than 2 inches deep.” In addition, the boots did not contain any of the four exceptions enumerated in T.D. 93-88 which would prevent classification as protective footwear. As a result, CBP classified these boots as protective footwear of subheading 6402.99.33, HTSUS. See HQ W968301. In the present case, CBP found that when submerged in a sink that contained two inches of water to simulate a puddle of that depth, neither one of the subject shoes leaked. Accordingly, we find that the subject merchandise would keep a user’s foot drier than ordinary shoes and is therefore protective against water. Protective footwear is precluded from classification under 6402.91.40, unless it satisfies the parenthetical exceptions which are listed in the subheading text. In other words, protective footwear may 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 merchandise, CBP finds that both styles of the footwear at issue are entirely of non-molded construction and have substantial exposed functional stitching. Accordingly, we find that, despite being “protective” footwear within the meaning of T.D. 93-88, the subject footwear meets the construction requirements for the protective exclusion in subheading 6402.91.40, HTSUS. As such, the subject merchandise is classified in subheading 6402.91.40, HTSUS. Although Protestant alleges that NY N183017 and N197074 are authoritative with regard to this result, we do not find this to be the case. Both of those rulings classified merchandise that was not found to be protective footwear and hence the non-molded construction was not at issue. HOLDING: By application of GRI 1, the subject footwear is classified in heading 6402, HTSUS. It is specifically provided for 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 ALLOW 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