In ruling HQ H303063, Customs and Border Protection (CBP) revoked ruling NY N295514 and discussed the classification of the Latex Rubber Boot Saver. In NY N295514, CBP had classified certain disposable latex shoe/boot covers under subheading 6401.92.9060 HTSUS, which provides for “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: covering the ankle but not covering the knee: other: other: other.” Tingley Rubber Corporation filed a request for modification of NY N295514. HQ H303063 discussed whether the Latex Rubber Boot Saver should be classified under subheading 3926.90.9990, 6401.99.3000, or 6401.92.9060, HTSUS.

CBP noted the following:

Chapter 39 Note 2 provides, in pertinent part:

“2. This chapter does not cover:

(q) Articles of section XII (for example, footwear, headgear, umbrellas, sun umbrellas, walking-sticks, whips, riding-crops or parts thereof);”

Chapter 64, Note 1 provides, in pertinent part:

“1. This chapter does not cover:

(a) 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;”

The Explanatory Notes (EN) to Chapter 64 provide:

“(A) […] The Chapter includes:

(10) Disposable footwear, with applied soles, generally designed to be used only once.”

CBP mentioned that it has consistently determined that disposable latex shoe covers, similar to the Boot Savers, are not flimsy pursuant to Chapter 64, Note 1(a), HTSUS, despite being intended for a one-time limited use. See NY M86014 (Sept. 8, 2006); NY L81039 (Dec. 13, 2004); and, NY E81872 (June 8, 1999). Moreover, the Oxford English Dictionary defines “flimsy” as “insubstantial and easily damaged.” See https://en.oxforddictionaries.com/definition/flimsy (accessed May 15, 2019). From inspecting the samples provided, CBP determined that the Boot Saver’s latex rubber material is strong and stretchy, and does not tear or rip when pushing a finger through it with little effort. Accordingly, CBP found the Boot Saver’s latex rubber material is not flimsy.

Chapter 64 includes disposable footwear, generally designed to be used only once, if it has an applied sole. Whether footwear has an applied sole pursuant to Note 1(a) to Chapter 64 depends on whether a “line of demarcation” between the outer sole and the upper can be identified. The Boot Savers, while made from a single material, have two additional, distinguishable, applied layers on the bottoms: a second coating of latex and a texturized outer sole. Due to the distinguishable outer soles and line of demarcation, CBP determined that the Boot Savers have applied soles. Therefore, CBP believed that the Boot Savers are classifiable as footwear in Chapter 64, HTSUS, pursuant to Note 1(a), because they are not flimsy and have applied soles.

Whether the Boot Saver is classified under subheading 6401.92.9060 or 6401.99.30 depends on whether it covers the ankle. 6401.99.30, HTSUS, covers waterproof footwear with uppers and soles of rubber/plastic which do not cover the ankle. Based on observations of the National Import Specialist and CBP’s examination of the samples, the Boot Savers do not cover the ankle. Therefore, CBP determined that the Latex Rubber Boot Saver is classified under subheading 6401.99.30, HTSUS, which provides for “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: Other: Other: 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: Designed for use without closures.” The duty rate is 25% ad valorem.