Reconsideration of NY N034665; classification of footwear with rubber/plastic uppers and soles.

HQ H048863 May 11, 2010 CLA-2 OT:RR:CTF:TCM H048863 CkG CATEGORY: Classification TARIFF NO.: 6402.99.40 Mr. Donald S. Simpson Senior Vice President Barthco International, Inc. 5101 South Broad Street Philadelphia, PA 19112 Re: Reconsideration of NY N034665; classification of footwear with rubber/plastic uppers and soles. Dear Mr. Simpson, This is in response to your letter of December 29, 2008 requesting the reconsideration of New York Ruling Letter (NY) N034665, dated August 13, 2008. In NY N034665, CBP classified the instant footwear in subheading 6402.99.40, HTSUS, as “other” footwear of the slip-on type. You request classification in subheading 6402.99.31, HTSUS, as footwear “having uppers of which over 90 percent of the external surface area is rubber or plastics.” For the reasons set forth below, we affirm the decision in NY N034665. FACTS: The submitted sample is a slip-on open-heel clog-like shoe with a predominately rubber/plastics material upper that does not cover the ankle and with a rubber/plastic outer sole. The shoe has multiple rectangular-shaped openings along the vamp. There is a removable man-made textile lining. The lining serves as an insole and extends around the upper’s top line opening to form a collar held to the upper by two plastic buttons. The collar creates an edging along the rim of the upper. The buttons and liner can be removed. The sample does not contain a foxing-like band and is designed to be worn as the primary footwear. ISSUE: Whether the textile lining is taken into account when calculating whether the external surface area of the upper (ESAU) of the instant merchandise consists of over 90% rubber or plastic. LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The HTSUS provisions at issue 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 foxing 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 . . . . . . . . . * * * * * Chapter 64, Note 4(a) provides as follows: Subject to note 3 to this chapter: 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. General EN (D) to Chapter 64 reads, in pertinent part, as follows: For the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account. The upper is the part of the shoe or boot above the sole. However, in certain footwear with plastic moulded soles or in shoes of the American Indian moccasin type, a single piece of material is used to form the sole and either the whole or part of the upper, thus making it difficult to identify the demarcation between the outer sole and the upper. In such cases, the upper shall be considered to be that portion of the shoe which covers the sides and top of the foot… If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners. The constituent material of any lining has no effect on classification. EN 64.02 provides: The heading covers, inter alia: (b) Clogs without quarter or counter, the uppers of which are produced in one piece usually attached to the base or platform by riveting; * * * * * The upper in the instant case is the portion of the shoe which covers the sides and top of the foot. The upper of the instant footwear consists of molded rubber/plastic and a textile lining. The rubber and plastic combination constitutes the greater external surface area of the instant footwear. You do not dispute that by application of Note 4(a) and General EN (D) of Chapter 64, the instant footwear is therefore classifiable in Heading 6402, HTSUS, as other footwear with outer soles and uppers of rubber or plastics. However, the determination at GRI 6 of whether the textile lining is included in the calculation regarding the external surface area of the upper (ESAU) in subheading 6402.99.31, HTSUS, is made in accordance with the terms of the subheading. Subheading 6402.99.31, HTSUS, specifically includes any accessories or reinforcements such as those mentioned in note 4(a) to Chapter 64 in the calculation of whether the ESAU is over 90% rubber or plastic. The accessories and reinforcements referenced in Note 4(a) to Chapter 64, HTSUS, and General EN (D) are additions to an already completed article of footwear that are added for style or reinforcement purposes, as opposed to an addition essential for the design of the article without which the article would not be complete. See e.g., HQ 956952, dated October 3, 1994. Such accessories or reinforcements may be made of any material so long as the material is a plausible upper material, if not the best material. See HQ 965818, dated November 6, 2002; HQ 956952, dated October 3, 1994; HQ 956398, dated November 15, 1994; HQ 953556, dated April 9, 1993; and HQ 084013, dated March 26, 1990. The textile lining which partially covers the exterior surface of the clogs and which is visible through the cutouts in the vamp constitutes such an accessory to the upper. The textile lining is a plausible upper material, added for style and comfort and not essential to the design of the article. In fact, the plastic buttons and textile lining are removable, evidencing its non-essential character. This conclusion is consistent with prior rulings such as HQ 952228, dated June 7, 1993, wherein a textile interior lining which extended to the surface of a leather and rubber boot was considered to be a plausible upper material and therefore an accessory or reinforcement of Note 4(a). HQ 088348, dated February 26, 1991, similarly found that the textile base of a men’s athletic shoe was a plausible upper because the importer used it as such in various places where it showed on the shoe upper. HQ 955541, dated May 18, 1994, further held that textile will be considered the external surface area of the upper in those areas where it is visible and tactile through cutouts in the upper. The textile edging of the instant footwear therefore constitutes a reinforcement or accessory pursuant to Note 4(a); as you note in your request for reconsideration, it can be considered edging or ornamentation of Note 4(a). For the purposes of classification in subheading 6402.99.31, HTSUS, we must therefore include the textile lining which extends around the foot opening and which shows through the cutouts in the vamp in our determination of the composition of the ESAU. In the instant case, the addition of the textile lining precludes classification of the subject footwear in subheading 6402.99.31, as it constitutes 10% or more of the exterior surface area of the upper. The appropriate classification within heading 6402, HTSUS, is therefore subheading 6402.99.40, which provides for “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,” and which only requires that the greater part of the ESAU be composed of rubber or plastics, without taking into account accessories and reinforcements. HOLDING By application of GRIs 1 and 6, the subject article is classified in heading 6402, HTSUS, and is specifically provided for in subheading 6402.99.40, HTSUS, which provides for: “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, 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.” The 2009 column one, general rate of duty is 37.5% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N034665, dated July August 13, 2008, is hereby affirmed. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division