H312082

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H312082 May 5, 2021 OT:RR:CTF:FTM H312082 MD CATEGORY: Classification TARIFF NO.: 6404.19.20 Port Director, Service Port-Seattle U.S. Customs and Border Protection 17801 Pacific Highway S Seattle, Washington 98158 Attn: Grace Carmichael, Import Specialist Re: Application for Further Review of Protest No. 3002-17-100171; Classification of Protective Footwear Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3002-17-100171, timely filed by The Law Office of George R. Tuttle, P.C., on behalf of their client, C.O. Lynch Enterprises (“Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of certain types of footwear, under subheading 6404.19.20, Harmonized Tariff Schedule of the United States (“HTSUS”), as 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, with a duty rate of 37.5% ad valorem. On February 12, 2021, a conference was held to discuss this AFR and the information therein with Protestant’s counsel. No further supplemental information was submitted after this conference. FACTS: The footwear styles at issue in this protest include: Men’s Snow Storm Brown (Stock No. 642115), Snow Storm Women’s and Women’s Sand (Stock No. 642116), Snow Storm Kids (Stock No. 642117), Snow Bird Pink (Stock No. 647077), Snow Bird Blue (Stock No. 642078), and Norte Camo with Pink Trim (Stock No. 8002260). Within their protest, Protestant noted both similarities and distinct differences between the six styles of footwear at-issue. Protestant stated that all six styles of footwear consist of a primarily textile upper, are worn as over-the-ankle boots, have a molded bottom constructed of “Thermoplastic Rubber” (“TPR”) extending over two inches from the ground, and have a layer of textile embedded in the outsole. While Protestant’s submission also highlighted the differences between the six styles of footwear, these differences were offered to assert that each of the six styles were not cold protective. Specifically, the Men’s Snow Storm Brown (Stock No. 642115), Snow Storm Women’s and Women’s Sand (Stock No. 642116), Snow Storm Kids (Stock No. 642117), Snow Bird Pink (Stock No. 647077), and Snow Bird Bird Blue (Stock No. 642078) are constructed as follows: Insole: ¾” thick layer comprised of Thinsulate and fleece Toe Box: 1/8” layer consisting of tricot lining w/ foam backing Vamp: 1/8” layer consisting of tricot lining w/ foam backing Shaft: No shaft Collar: ½” foam and 1/8” tricot lining In contrast, the Notre Came with Pink Trim is constructed with: Insole: 3/8” layer of Berber lining with foam backing Toe Box: 3/8” layer of Berber lining with foam backing Vamp: 3/8” layer of Berber lining with foam backing Shaft: 3/8” layer of Berber lining with foam backing Collar: ½” layer of tricot w/ foam backing The merchandise was entered under subheading 6404.19.37, 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 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 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The duty rate was 12.5% ad valorem. Upon review of the documentation and the examination of the samples, CBP classified and liquidated the subject footwear under subheading 6404.19.20, HTSUS, at the general rate of duty is 37.5% ad valorem. Protestant claims the correct classification for these styles are as “non-protective footwear” under subheading 6404.19.87, 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: other: valued over $6.50 but not over $12/pair: with uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The general rate of duty is 12.5% ad valorem. For a product to be classified under subheading 6404.19.20, HTSUS, it must be protective. Specifically, it must be protective against “water, oil, grease, or chemicals or cold or inclement weather.” For the sake of brevity in our analysis, we look to Protestant’s contention that the subject merchandise is not protective footwear in the order in which they appear in Protestant’s submission – beginning with an analysis of water protection and moving to an analysis of cold protection if necessary. ISSUE: What is the tariff classification of the footwear at issue? LAW AND ANALYSIS: Initially, we note that this matter 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. (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. 3002-17-100171 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s classification of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 967509, dated March 3, 2005, specifically, and several other rulings reiterating its position. See, e.g., New York Ruling Letter (“NY”) N247430, dated November 29, 2013; and HQ W968301, dated March 13, 2007. Merchandise imported into the United States is classified under the 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 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The 2015 HTSUS provisions under consideration are as follows: 6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: 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 protection against water, oil, grease, or chemicals or cold or inclement weather * * * 6404.19.87 With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter * * * 

Initially, we note that this matter 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.  (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. 3002-17-100171 is properly warranted pursuant to 19 C.F.R. § 174.24(a) as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Protestant argues that the Port’s classification of the subject entry contradicts Headquarters Ruling Letter (“HQ”) 967509, dated March 3, 2005, specifically, and several other rulings reiterating its position. See, e.g., New York Ruling Letter (“NY”) N247430, dated November 29, 2013; and HQ W968301, dated March 13, 2007.Merchandise imported into the United States is classified under the 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 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.The 2015 HTSUS provisions under consideration are as follows:6404 Footwear with outer soles