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HQ 956921

November 22, 1994

CLA-2 CO:R:C:M 956921 DFC


TARIFF NO.: 6404.19.35

Area Director of Customs
J.F.K. Airport
Building 178
Jamaica, New York 11430

RE: Protest 1001-92-106467; Shoe covers, disposable; Disposable footwear; Transaction value; T.D. 93-88; HRL 084857

Dear Area Director:

This is in response to Protest 1001-92-106467 covering a shipment of disposable shoe covers. A sample was submitted for examination.


The sample is a disposable shoe cover with an elasticized opening. According to the documentation submitted with the protest, the goods are referred to as surgical overshoes. They are of the type worn by persons in hospital operating rooms over regular shoes. Customs Laboratory Report 2-92-10708-00 dated March 17, 1992, states that the upper of the shoe cover is made of non-woven textile (polypropylene fibers) which is 41% by weight of the entire sample. The non-woven sole is 59% by weight of the entire sample and is composed of plastic, polyester and wood pulp. The outer surface of the sole has been laminated with a plastic to make it waterproof and to provide resistance to slipping and abrasions.

The entry for the shoe covers was liquidated on August 28, 1992, under subheading 6404.19.35, Harmonized Tariff Schedule of the United States (HTSUS), which provides for footwear with outer soles of plastics and uppers of textile material, other. The merchandise was appraised at total invoice value of $10,591 net, pkd. A protest against the classification and appraisement of the merchandise was timely filed on October 22, 1992.

Counsel for the protestant maintains that the merchandise is properly classifiable under subheading 6307.90.90, HTSUS, which provides for other made up textile articles. Alternatively, it is asserted that the merchandise is classifiable under subheading 6405.90.20, HTSUS, which provides for disposable footwear, designed for one-time use.

Counsel also disagrees with appraisement at total invoice value. He asserts that the cost of marine insurance and international freight should have been deducted from the price [$10,591 CIF- $1.944.] to arrive at the proper entered value which is $8,647.


Are the disposable shoe covers classifiable under subheading 6404.19.35, HTSUS, as footwear, under subheading 6405.90.20, HTSUS, as disposable footwear, or under subheading 6307.90.90, HTSUS, as textile articles?

What is the appraised value of the merchandise?


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 GRI's]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions read, as follows:

6307 Other made up articles, including dress patterns

6307.90 Other:

6307.90.99 Other. . . . . .

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:

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 over-lapping the upper:

6404.19.35 Other. . . . . .

6405 Other footwear:

6405.90 Other:
Disposable footwear, designed for one- time use. . . . . . .

Note 1(a) to chapter 64, HTSUS, reads as follows;

1. This chapter does not cover:

(a) Footwear without applied soles, of textile material (chapter 61 or 62)[.]

The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes to the HTSUS (EN), although not dispositive, should be looked to for the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).

The General EN to chapter 64, HTSUS, explains, in pertinent part, that "[f]or the purposes of this Chapter, the term 'footwear' does not, however, include disposable foot or shoe covering of flimsy material (paper, sheeting of plastics, etc.) without applied soles. These products are classified according to their constituent material."

On November 17, 1993, in T.D. 93-88 (27 Cust. Bull. & Dec. No.46, Customs published certain footwear definitions used by Customs import specialists in classifying footwear under Chapter 64, HTSUS. Inasmuch as these definitions were provided merely as guidelines and are not to be construed as Customs rulings, they are not dispositive. However, we believe they should be consulted. On page 6 of that document the term "Line of Demarcation" is defined, as follows:

A 'line of demarcation' exists if one can indicate on the item the line along which the sole ends and the upper begins. For example, a knit infant's bootie does not normally have a 'line of demarcation.'

We are aware, as counsel for the protestant points out, of Headquarters Ruling Letter (HRL) 084857 dated June 28, 1989, wherein Customs ruled that a disposable shoe cover was classified under subheading 6307.90.90, HTSUS, as other made up textile articles. However, the shoe cover which was the subject of that ruling, unlike the instant shoe cover, was made entirely of fabric and was joined down the middle and thus lacked an "applied sole." In classifying this type of footwear, we follow the distinction set out in the Compendium of Classification Opinions HCDCS, Brussels First Edition (1987) between the flimsy footwear in chapters 39 and 63 and those in chapter 64 on the basis of their having a separate piece of material which is the sole. The top of the sample's blue coated piece constitutes the "line of demarcation" indicating where the sole ends and the upper begins. See T.D.93-88. The blue portion of the cover in contrast with the white portion is designed to be in contact with the ground and will be, approximately, under the foot and not covering its side or top.

Inasmuch as the subject disposable shoe cover has a plastic sole and a textile upper, its classification is mandated under heading 6404, HTSUS; specifically subheading 6404.19.35, HTSUS. Although subheading 6405.90.20, HTSUS, provides for disposable footwear, designed for one-time use, such as the subject footwear, it can only be classified under this provision if it has outer soles and uppers of a material or combination of materials not referred to in the preceding headings of Chapter 64. See EN 6405, page 879.

With respect to the appraisement issue, the merchandise was appraised on the basis of transaction value and the entered value was based upon the invoice price of the merchandise. Transaction value is based upon the "price actually paid or payable" for the imported merchandise, plus five enumerated additions. Section 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401a(b)). The "price actually paid or payable" is exclusive of any costs, charges or expenses incurred in the international shipment of the merchandise.

The invoice accompanying the entry indicates a price of 54880 French Francs ($10,591). The invoice provided by counsel for the protestant indicated that the terms of the sale were CIF. Therefore, the invoice price included shipping costs. The CIF terms on the bottom portion of the invoice which has apparently been cut off from the initial copy provided to Customs. Attached to the protest is what appears to be a freight bill, indicating prepaid freight in the amount of $1944. The freight bill identified the foreign seller as the exporter, and the importer as the consignee. The importer takes the position that the transaction value of the imported merchandise should be the invoice price of $10,591, less $1944 in shipping costs. The documentation presented shows that the invoice price of the merchandise included the shipping costs and that the amount of the shipping was $1944. The appraised value of the merchandise should be the invoice price less the shipping costs.


The disposable shoe covers are dutiable at the rate of 37.5% ad valorem under subheading 6404.19.35, HTSUS.

The appraised value of the merchandise should be the invoice price less the shipping costs.

The protest should be denied as to the classification of the disposable shoe covers but should be allowed with respect to the appraisement issue. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, though counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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