H288099

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H288099 April 3, 2020 OT:RR:CTF:FTM H288099 JER CATEGORY: Classification TARIFF NO: 6404.19.39 Port Director U.S. Customs and Border Protection John F. Kennedy International Airport Building 77, 2nd Floor Jamaica, New York 11430 RE: Application for Further Review of Protest No. 1001-17-100190; classification of disposable boot covers Dear Port Director: This is in response to the Application for Further Review of Protest No. 1001-17-100190, filed by the law firm of Simon Gluck & Kane, on behalf of their client, Quest Environmental & Safety Products, Inc. (“Protestant”), concerning the classification of the Quest SMS boot covers, also identified as the Q-Gard Traction boot covers, in heading 6404, Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to a request from counsel, a telephone conference was held with counsel and members of my staff on April 1, 2020. FACTS: The merchandise at issue is identified as the Q-Gard Traction boot cover. Protestant states that the boot covers are designed for one-time use with skid resistant soles for use in hygienically controlled environments and clean rooms. The Q-Gard Traction boot cover is designed to be worn over the boot. The Quest Safety website describes the boot cover as being disposable and protective apparel. https://www.shopquestsafety.com. According to the literature submitted, the Q-Gard Traction boot covers are approximately sixteen and one half inches in length and six inches tall when lying flat. The Q-Gard Traction boot covers are described as being splash resistant to non-hazardous chemicals. Additionally, the Quest Protective Apparel website states that the Q-Guard Traction 18” (eighteen inch) boot covers feature a polyvinyl chloride plastic (“PVC”) sole for skid resistance and durability on both wet and dry surfaces. www.questqpa.com. The two samples provided feature an elastic band at the top of the article, which secures the boot cover to the leg. In addition to a sewn-on outer sole constructed of PVC, the boot covers consist of uppers made of nonwoven fabric wholly of polypropylene fiber with overlock stitching connecting the uppers and the outer soles. A second sample has the same features and composition as the first sample but also features heel straps that are used to tighten the boot cover over the regular shoe. According to CBP Laboratory Report SV20171923 (“CBP Laboratory Report”), dated September 28, 2017, the uppers are of nonwoven fabric wholly of polypropylene fibers; while the outer sole is a polyvinyl chloride plastic. By weight, the sample is composed of 52% plastic outer sole and 48% nonwoven fabric (for the upper with ties). The subject merchandise was entered from April 29, 2016 through October 12, 2016. The Port liquidated the subject entries under heading 6404, HTSUS, specifically, under subheading 6404.19.20, HTSUS, which provides for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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….” Protestant claims that the subject boot covers are properly classified under either heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics” or under heading 6405, HTSUS, as “Other footwear.” ISSUE: Whether the disposable shoe covers are classified in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics,” or heading 6404, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials,” or in heading 6405, HTSUS, as “Other footwear.” 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. 1001-17-100190 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, protestant alleges the action of the Port is inconsistent with Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016, in which 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 2016 HTSUS headings at issue are as follows: 6402: Other footwear with outer soles and uppers of rubber or plastics: (con.) * * * * Other footwear: 6402.99: Other: Other: 6402.99.31 Other… For women: 6402.99.31.65 Other… * * * * 6404: Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material: Footwear with outer soles of rubber or plastics: * * * * 6404.19: Other: * * * 6404.19.20: 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…. * * * Footwear with open toes or open heels; footwear of the slip-on type, that is held in place to the foot without the use of laces or buckles or other fastners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastic applied or molded at the sole and overlapping the upper: Other: 6404.19.39 Other………………. * * * * 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: Notes 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 design

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. 1001-17-100190 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, protestant alleges the action of the Port is inconsistent with Headquarters Ruling Letter (“HQ”) H246161, dated September 16, 2016, in which 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 2016 HTSUS headings at issue are as follows:6402: Other footwear with outer soles and uppers of rubber or plastics: (con.)* * * * Other footwear: 6402.99: Other: Other:6402.99.31 Other… For women:6402.99.31.65 Other… * * * * 6404: Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material: Footwear with outer soles of rubber or plastics: * * * *6404.19: Other: * * *6404.19.20: Footwear designed to be worn over, or in lieu of other footwear as a protection against water, oil, grease or chemicals or c