H282908

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H282908 May 18, 2020 OT:RR:CTF:FTM H282908 JER CATEGORY: Classification TARIFF NO: 6402.99.31 Port Director U.S. Customs and Border Protection 555 Battery Street San Francisco, CA 94111 RE: Application for Further Review of Protest No. 2809-15-100709; classification of disposable shoe covers Dear Port Director: This is in response to the Application for Further Review of Protest No. 2809-15-100709, filed by The Law Offices of George R. Tuttle, P.C., on November 9, 2015, on behalf of their client, Shoe Inn, LLC. (“Protestant”), concerning the classification of the Shoe Inn shoe covers, in heading 6404, Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise at issue is identified as the Shoe Inn shoe cover. The Shoe Inn shoe cover is constructed of two layers. The inner layer is a spun bond polypropylene textile material and an outer layer of chlorinated polyethylene (CPE), a rubber or plastic. The blue-colored rubber/plastic outer layer, is heat-sealed to, and covers much of, the white textile inner layer almost to the topline. This shoe cover, which measures 18 ½ inches by 6 inches when laid flat, is secured to the foot by a sewn-in elastic band at the topline. Multiple covers are loaded into a specially designed dispensing machine and can cover either foot. The shoe cover is meant to be worn over footwear and used in food processing facilities, health care facilities, construction areas, and manufacturing facilities. The shoe cover is designed for one-time use and then is intended to be discarded. A sample of the shoe cover was provided with the submission. The merchandise is the subject of six protested entries, wherein U.S. Customs and Border Protection (“CBP”) liquidated the entries under heading 6404, HTSUS, and specifically under subheading 6404.19.3960, which provides for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” Protestant asserts that the subject shoe covers are properly classified under either heading 3926, “Other articles of plastics, and articles of other materials…” In the alternative, Protestant asserts that the shoe covers are classified under either heading 6307, HTSUS, as “Other made-up articles of textile…” or under heading 6405, HTSUS, as “Other footwear: Disposable footwear, designed for one-time use.” ISSUE: Whether the disposable shoe covers are classified in heading 3926, HTSUS, as “Other articles of plastics and articles of other materials…” or in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics,” or heading 6307, HTSUS, as “Other made-up articles of textile…” or in heading 6405, HTSUS, as “Other footwear: Other: Disposable footwear, designed for one-time use.” LAW AND ANALYSIS: Initially we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on March 3, 2017, within 180 days of liquidation. (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. 2809-15-100709 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed was alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleged the action of the Port was inconsistent with New York Ruling Letter (“NY”) N239495, dated April 19, 2013. We note that since the filing of this protest, NY N239495 has been revoked by Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016. In HQ H246161, CBP found that certain disposable shoe covers were properly classified under subheading 6402.99.31, HTSUS. 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. GRI 6, HTSUS, requires that the GRI’s be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI’s apply in the same manner when comparing subheadings within a heading. The HTSUS headings at issue are as follows: 3926: Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90: Other: 3926.90.80 Other… * * * * 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: 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… Other: 6402.99.33 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… * * * * 6405: Other footwear: * * * * 6405:20: With uppers of textile material: * * * * 6405.90 Other: 6405.90.20: Disposable footwear, designed for one-time use * * * * 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. Footwear of textile material, without an outer sole glued, sewn or otherwise affixed or applied to the upper (Section XI). Note 4 to Chapter 64 provides as follows: 4. Subject to note 3 to this chapter: 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. 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. The footwear covered by this Chapter may be of an

Initially we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on March 3, 2017, within 180 days of liquidation.  (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. 2809-15-100709 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed was alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleged the action of the Port was inconsistent with New York Ruling Letter (“NY”) N239495, dated April 19, 2013. We note that since the filing of this protest, NY N239495 has been revoked by Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016. In HQ H246161, CBP found that certain disposable shoe covers were properly classified under subheading 6402.99.31, HTSUS. 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. GRI 6, HTSUS, requires that the GRI’s be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI’s apply in the same manner when comparing subheadings within a heading.The HTSUS headings at issue are as follows:3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:3926.90: Other:3926.90.80 Other…* * * *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: Other:Having uppers of which over 9