Modification of NY M86737, dated October 13, 2006; Tariff Classification of the "Firstmate" Shoe

HQ H005083 May 19, 2009 CLA-2 OT:RR:CTF:TCM H005083 ASM CATEGORY: Classification TARIFF NO.: 6402.99.8060 Sarah O’Hare O’Neal Robert B. Silverman, Esq. Grunfeld, Desiderio, Lebowitz, Silverman & Lestadt, LLP 399 Park Avenue 25th Floor New York, NY 10022-4877 RE: Modification of NY M86737, dated October 13, 2006; Tariff Classification of the “Firstmate” Shoe Dear Ms. O’Neal and Mr. Silverman: This is in response to a request for reconsideration dated December 21, 2006, made on behalf of your client, Nine West Footwear Corp. (hereinafter “Nine West”), of New York Ruling letter (NY) M86737, issued by Customs and Border Protection (CBP) on October 13, 2006, which classified, in relevant part, the subject footwear, identified as “Firstmate”, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample has been submitted to CBP for examination. CBP has reviewed the classification of the “Firstmate” shoe and determined that the cited ruling is in error. Therefore, NY M86737 is modified for the reasons set forth in this ruling. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. Section 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY M86737, was published in Vol. 43, No. 15, of the Customs Bulletin on April 10, 2009. No comments were received in response to the notice. FACTS: The subject article is a woman’s shoe identified as “Firstmate”. This shoe features a closed toe with a functionally stitched upper comprised of rubber, plastic, and textile materials. The predominant materials used to construct the external surface of the upper are rubber and plastic. The shoe also has open side panels with two hook-and-loop style closures over the instep. The heel of the shoe is also constructed with an adjustable hook-and-loop closure strap that is secured through a loop sewn to a rubber panel measuring approximately 2 inches wide x 2 ½ inches high. This allows for a small vented opening on either side of the heel panel. The sole is constructed of a molded rubber and plastic bottom that overlaps the upper with a foxing-like band. In NY M86737, CBP determined that the “Fistmate” style shoe was an “open-heel” shoe for classification purposes. Thus, the merchandise was classified in subheading 6402.99.30, HTSUSA, which provides for footwear in which both the upper and outer sole’s external surface is predominately rubber and/or plastics; which is not “sports footwear”; and which does not cover the ankle. You have asserted, on behalf of Nine West, that NY M86737 is erroneous with respect to the classification of the “Firstmate” shoe and that it should have been classified as a “closed-heel” shoe under subheading 6402.99.8060, HTSUSA. ISSUE: Whether the “firstmate” is classified in subheading 6402.99.30, HTSUSA, as an open-heel shoe or in subheading 6402.99.80, HTSUSA, as a closed-heel shoe. LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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, the remaining GRI may then be applied. Subheading 6402.99.30, HTSUSA (2006), provided for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear : Other: 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 6402.99.20 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper”. Subheading 6402.99.80, HTSUSA (2006), provided for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $6.50 but not over $12/pair”. In this instance, it is important to note that GRI 6 is applicable and provides as follows: For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions. The footwear definitions are merely guidelines but state, in pertinent part, that for footwear classification purposes, CBP interprets the “heel” to be the rearmost boney part of the human foot, the top of which is located just below the Achilles tendon. Further, “open” is defined as “[i]n open heeled shoes, all or part of the back of the wearer's heel can be seen”. After careful examination of the sample provided, we now note that the heel panel is sufficiently wide (2 inches wide x 2 ½ inches high) to completely cover the rearmost boney part of the average human foot. As such, we note that the subject “Firstmate” shoe was erroneously classified as an “open-heel” shoe in NY M86737. In view of the foregoing, we now find that the subject sample is not an “open heel” shoe but is properly classified as a “closed heel” shoe in subheading 6402.99.8060, HTSUSA. HOLDING: The subject merchandise, identified as the “Firstmate” shoe, was correctly classified in subheading 6402.99.8060, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $6.50 but not over $12/pair, For women”. The 2009 general column one rate of duty is 90 cents/pair + 20 percent ad valorem. EFFECT ON OTHER RULINGS: NY M86737, dated October 13, 2006, is hereby modified consistent with the foregoing. In accordance with 19 U.S.C. Section 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division