H331495

HQ H331495 October 20, 2023 OT:RR:CTF:FTM H331495 MJD CATEGORY: Classification TARIFF NO: 6401.92.9060; 9903.88.15 Ms. Sheila Sumner Ceva International 2850 Earhart Court Hebron, KY 41048 RE: Affirmation of NY N329311; Tariff Classification of Footwear from China Dear Ms. Sumner, This is in response to your request, dated February 28, 2023, for reconsideration of New York Ruling Letter (“NY”) N329311, dated December 9, 2022, on behalf of your client, Marolina Outdoor, regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of the “Rogue Wave” outdoor boot manufactured in China. In NY N329311, U.S. Customs and Border Protection (“CBP”) classified the “Rogue Wave” boot under heading 6401, HTSUS, as “Waterproof footwear with outer soles and uppers of rubber or plastics.” You claim that the merchandise is properly classified in heading 6405, HTSUS, as “Other footwear.” We have reviewed NY N329311 and determined that the classification of the “Rogue Wave” boot in heading 6401, HTSUS, is correct, and for the reasons set forth below we are affirming that ruling. FACTS: NY N329311 described the subject merchandise as follows: Style “Rogue Wave” is identified by you as a unisex boot intended for use during outdoor activities such as fishing, hiking, or boating. The above-the-ankle, below-the-knee, slip-on boot, is said to have been manufactured by an exclusively adhesive construction and includes a foxing band. The material composition breakdown provided by you shows the constituent material having the greatest surface area of the upper to be predominantly rubber/plastics, with the balance (more than 10 percent) of elastic gore (textile for classification purposes) on the medial and lateral sides, at the top. The rugged outer sole is composed of rubber or plastic to which you state a leather flocking has been applied, covering the majority of the surface area in contact with the ground. The leather application is microns thin and not visible. In your request for reconsideration, you state that the lack of a physical sample did not clearly demonstrate the overall design and construction of the “Rogue Wave” boot and provided two samples of the boot. One sample of a flocked boot and another sample of a boot with no flocking. You provide that the boot has leather flocking that is .01-.02 mm thick and cost an additional $1.30 to manufacture the boot with the leather flocking. It is your opinion that because the flocking completely covers the sole of the boot and requires an additional cost to the boot that it should be classified in subheading 6405.90.9060, HTSUSA Annotated (“HTSUSA”), which provides for “Other footwear: Other: Other: Other.” ISSUE: Whether the “Rogue Wave” boot has an outer sole “of rubber or plastics” and thus is properly classified in heading 6401, HTSUS, or whether the outer sole is of leather and thus classified as “other footwear” in heading 6405, HTSUS? 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 2023 HTSUS provisions under consideration are as follows: 6401: Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes: Other footwear: 6401.92: Covering the ankle but not covering the knee: Other: 6401.92.90: Other… 6401.92.9060: Other… * * * 6405: Other footwear: 6405.90: Other: 6405.90.90: Other… 6405.90.9060: Other… * * * Note 4 to Chapter 64, HTSUS, provides as follows: 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. Additional U.S. Note 3 to Chapter 64, HTSUS, provides as follows: For the purposes of heading 6401 “waterproof footwear” means footwear specified in the heading, designed to protect against penetration by water or other liquids, whether or not such footwear is primarily designed for such purposes. * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 41.15 provides, in pertinent part, that: (I) Composition leather This group covers only composition leather with a basis of natural leather or leather fibres. It is to be noted that it does not apply to imitation leathers not based on natural leather, such as plastics (Chapter 39), rubber (Chapter 40), paper and paperboard (Chapter 48) or coated textile fabrics (Chapter 59). Composition leather, which is also known as “bonded leather”, may be made by various processes: The General ENs to Chapter 64, HTSUS, provides, in pertinent part, that: 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). EN 64.01 states, in pertinent part, that: This heading covers waterproof footwear with both the outer soles and the uppers (see General Explanatory Note, paragraphs (C) and (D)), of rubber (as defined in Note 1 to Chapter 40), plastics or textile material with an external layer of rubber or plastics being visible to the naked eye (see Note 3 (a) to this Chapter), provided the uppers are neither fixed to the sole nor assembled by the processes named in the heading. The heading includes footwear constructed to protect against penetration by water or other liquids and would include, inter alia, certain snow-boots, galoshes, overshoes and ski-boots. Footwear remains in this heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric with an external layer of plastics being visible to the naked eye; for the purpose of this provision no account should be taken of any resulting change of colour). * * * CBP has previously addressed the tariff classification of footwear with uppers of rubber or plastics and soles of rubber or plastics, with some type of leather material applied to the sole of the footwear. Where the outer sole of the footwear is covered with only a dusting of leather flocking or a microns-thin level of leather flocking, this application of leather flocking should be viewed as a “similar attach

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 2023 HTSUS provisions under consideration are as follows:6401: Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes:Other footwear:6401.92: Covering the ankle but not covering the knee: Other:6401.92.90: Other…6401.92.9060: Other… * * * 6405: Other footwear: 6405.90: Other:6405.90.90: Other…6405.90.9060: Other… * * * Note 4 to Chapter 64, HTSUS, provides as follows: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. Additional U.S. Note 3 to Chapter 64, HTSUS, provides as follows: For the purposes of heading 6401 “waterproof footwear” means footwear specified in the heading, designed to protect against penetration by water or other liquids, whether or not such footwear is primarily designed for such purposes. * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff