Tariff classification of footwear; Protest Number 3401-08-100041

HQ H042545 November 24, 2009 CLA-2 OT:RR:CTF:TCM H042545 GC CATEGORY: Classification TARIFF NO.: 6402.99.31 U.S. Customs and Border Protection Pembina Service Port 112 West Stutsman Street Pembina, North Dakota 58271 RE: Tariff classification of footwear; Protest Number 3401-08-100041 Dear Port Director: This letter is in reply to protest, and application for further review, number 3401-08-100041, dated September 2, 2008, filed by FedEx Trade Networks on behalf of its client, Relaxus Products Ltd. (Relaxus), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of an entry of a certain style of rubber/plastics footwear. FACTS: This protest pertains to one entry taking place on November 5, 2007, which covers, in relevant part, six styles of the “Gekko Elite” clog. The “Gekko Elite” shoe submitted with the protest is an open-heel molded rubber and plastics clog with ventilation holes along the vamp. It features a removable heal strap composed of rubber and plastics secured in place with rivet-like plugs. The shoe also features textile straps secured by hook and loop closures that are used to tighten the shoe. CBP Laboratories and Scientific Research Services Report NY20081725 indicates that, when including reinforcements and accessories, the external surface area of the upper is 90.8 percent rubber and plastics and 9.2 percent textile material. The outer sole is composed of rubber and plastics material. On January 31, 2008, CBP issued a request for information (CBP Form 28) pertaining to the subject merchandise. In response to the information received on February 19, 2008, CBP issued a notice of action on February 27, 2008 informing the protestant of CBP’s classification position and the consequent rate advance pertaining to the subject entries. At liquidation, dated March 14, 2008, CBP classified the subject merchandise under subheading 6402.99.40, Harmonized Tariff Schedule of the United States (HTSUS) (2007), which provides for, in pertinent part: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: 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…”. Relaxus asserts that the subject merchandise was properly classifiable under subheading 6402.99.31, HTSUS (2007), which provides for, in pertinent part: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics…: Other: Other…”. As such, Relaxus is protesting CBP’s classification and liquidation of the subject merchandise. ISSUE: Whether the “Gekko Elite” clog is classified in subheading 6403.99.31, HTSUS, as other footwear with uppers featuring an external surface area of over ninety percent rubber of plastics or in subheading 6402.99.40, HTSUS, as other footwear? LAW AND ANALYSIS: Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on September 2, 2008, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3). Further review of Protest 3401-08-100041 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(a), the decision against which the protest was filed “[i]s alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise…”. Specifically, protestant points to a prior liquidation in which CBP classified substantially similar merchandise under subheading 6402.99.31, HTSUS. See also Headquarters Ruling Letter H019060, dated July 18, 2008. 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 subject merchandise is classified in subheading 6402.99, HTSUS. As issue is the appropriate eight-digit national tariff rate. Classification beyond the four-digit level is governed by GRI 6, which 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 provisions of the 2007 HTSUS, under consideration are as follows: 6402 Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 6402.99 Other: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a fixing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear 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): Other: 6402.99.31 Other… * * * Other: 6402.99.40 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… Note 4 to Chapter 64, HTSUS, which states that, subject to Note 3 to Chapter 64, HTSUS: 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. It is not disputed that the instant footwear is not protective footwear, nor is it disputed that the instant footwear lacks a foxing or foxing-like band overlapping the upper. Lastly, the laboratory analysis of the provided sample indicates that the external surface area of the upper consists of over 90 percent rubber or plastics. Accordingly, the instant footwear meets the terms of subheading 6402.99.31, HTSUS (2007). Therefore, classification in subheading 6042.99.40, HTSUS, is precluded. HOLDING: By application of GRIs 1 and 6, the instant Relaxus “Gekko Elite” shoe is classified under heading 6402, HTSUS (2007), and specifically provided for under subheading 6402.99.31, HTSUS (2007), which provides for, in pertinent part: “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Having uoopers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics…: Other: Other…”. The column one, general rate of duty in effect at the time of entry was 6 percent. The protest should be APPROVED. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant 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 Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division