Reconsideration of NY N021852, dated January 23, 2008: classification of footwear

HQ H023368 November 25, 2008 CLA-2 OT:RR:CTF:TCM H023368 GC CATEGORY: Classification TARIFF NO.: 6404.20.6060 Mr. Timothy W. Mackall Nickal Technologies, Inc. 1725 Handball Lane, Suite C Indianapolis, Indiana 46260 RE: Reconsideration of NY N021852, dated January 23, 2008: classification of footwear Dear Mr. Mackall: This is in response to your letter, dated February 1, 2008, requesting reconsideration of New York Ruling Letter (NY) N021852, dated January 23, 2008, which pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of footwear imported by Nickal Technologies, Inc. FACTS: The sample provided to Customs and Border Protection (CBP) is identified as style number SH066-OL. The subject footwear was described in NY N021852 as follows: …a [women’s] size 6 low-top, lace-up basketball shoe with a foxing or foxing-like band, an outer sole of rubber/plastics and an upper of canvas textile material. The unit molded outer sole has a thin layer (approximately 1 mm) of leather material adhered by means of hot, fluid pressure to the walking surface at the ball and heel of the foot. In NY N021852, the subject merchandise was classified in subheading 6404.20.6060 HTSUS, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Other...: For women”. In your request for reconsideration of NY N021852, you argue that the subject merchandise is properly classified under subheading 6404.20.4060, HTSUS, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics: Valued over $2.50/pair… For women”. ISSUE: Whether Note 4(b) to Chapter 64, HTSUS, is applicable at the eight-digit national subheading level? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. There is no dispute that the footwear is classified in heading 6404, HTSUS. Further, there is no dispute that the footwear is classified in subheading 6404.20, HTSUS. At issue is the applicable subheading at the eight-digit national subheading level. As such, GRI 6 is implicated. GRI 6 states: For legal purposes, the classification of goods in the subheading 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. The HTSUS provisions under consideration in this case are as follows: 6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: * * * 6404.20 Footwear with outer soles of leather or composition leather: Not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics: 6404.20.20 Valued under $2.50/par… * * * 6404.20.40 Valued over $2.50/pair… 6404.20.60 Other… Note 4(b) to Chapter 64, HTSUS, states that “[t]he 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”. The issue in this case is whether Note 4(b) applies beyond the six-digit international subheading level. You argue that “[o]nce the sole is determined as leather under the provisions of [Note] 4(b) [for the purpose of classification within subheading 6404.20], …it would therefore be obvious and thus improper to use, count, or weigh individual component material essential in the production of the leather outer sole, in any form other than the singular form for which [Note] 4(b) teaches”. In other words, you are of the opinion that once we determine leather to be the constituent material of the outer sole in accordance with Note 4(b), we should not consider any other material on the footwear at the eight-digit national subheading level. In Headquarters Ruling Letter (HQ) 082614, dated October 17, 1988, we interpreted subheadings 6404.20.20 and 6404.20.40, HTSUS, to be “…limited to footwear with fabric uppers and leather or composition leather soles which are under 10 percent by weight of rubber and plastics or not over 50 percent by weight of textile materials, rubber and plastics”. In doing so, we noted that this interpretation was also consistent with the provisions contained in the Tariff Schedule of the United States, the predecessor to the HTSUS, which provided for footwear “which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics”. To interpret the scope of subheading 6404.20.40, HTSUS, as you have suggested would run contrary to the canon of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Under this maxim, if a statute "... assumes to specify the effects of a certain provision, other ... effects are excluded" (Black's Law Dictionary, 6th ed. (1990), p. 581; see also, e.g., United States v. Azeem, 946 F. 2d 13, 17 (2nd Cir. 1991). Headings 6401 through 6404, HTSUS, explicitly identify the material of the outer sole for each respective heading. Likewise, subheading 6404.20, HTSUS, specifies that the “outer sole” must be composed of leather or composition leather pursuant to Note 4(b). However, subheading 6404.20.40, HTSUS, does not explicitly identify any component of the shoe by which to determine the measurements set forth therein. Insofar as no component has been identified in subheading 6404.20.40, HTSUS, we decline to infer that only the outer sole shall be measured for purposes of classification within this subheading. The plain meaning of the tariff provision indicates no limitation as you suggest. All of the components that comprise the subject footwear must be measured for classification within subheading 6404.20.40, HTSUS. We note that CBP has consistently interpreted this language to cover footwear with fabric uppers and leather or composition leather soles which are under 10 percent by weight of rubber and plastics or not over 50 percent by weight of textile materials, rubber and plastics”. See, e.g., HQ 082614, supra; HQ 960970, dated July 9, 1998; HQ 951166, dated January 27, 1993; and HQ 962521, dated July 11, 2002. In the instant case, the weight of the rubber and plastics alone accounts for more than 50 percent by weight of the subject merchandise. Consequently, it does not fit the terms of subheading 6404.20.40, HTSUS, and is thus classifiable in subheading 6404.20.60, HTSUS. HOLDING: By application of GRI 1 through operation of GRI 6, the subject footwear (style number SH066-OL) is classifiable under heading 6404, HTSUS, and is specifically provided for in subheading 6404.20.6060, HTSUS, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Other...: For women”. The column one, general rate of duty is 37.5 percent ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. EFFECT ON OTHER RULINGS: NY N021852, dated February 1, 2008, is hereby AFFIRMED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division