Protest and Application for Further Review No: 2304-06-100095; Tariff Classification of Footwear

HQ H103967 August 11, 2010 CLA-2 OT:RR:CTF:TCM H103967 TNA CATEGORY: Classification TARIFF NO.: 6404.19.35 Port Director, Laredo Service Port U.S. Customs and Border Protection P.O. Box 3130Laredo, TX 78044-3130 RE: Protest and Application for Further Review No: 2304-06-100095; Tariff Classification of Footwear Dear Port Director: The following is our decision regarding Protest and Application for Further Review No. 2304-06-100095, timely filed on December 19, 2006, on behalf of Meramec International, Inc. (“Meramec”), regarding the tariff classification of footwear under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of footwear with outer soles of polyurethane (PU) plastic and uppers mainly of wool felt. The uppers also contain a 5/8-inch wide textile trim that surrounds the opening into which the wearer’s foot is inserted. The shoes are of the slip-on type with a back that rises approximately 5/8 of an inch from the PU outer sole and covers a small fraction of the wearer’s heel. This back allows the foot to sit approximately 3/4-inch inside the footwear. A sample was received and examined by this office. This protest covers two entries of the subject merchandise on September 2, 2005 and September 9, 2005 in subheading 6404.19.35, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: 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 overlapping the upper: Other.” The entries were liquidated as entered on July 14, 2006 and July 21, 2006. Protestant now claims classification in subheading 6404.19.90, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued at over $12/pair.” ISSUE: Whether the subject footwear, which allows the foot to sit approximately 3/4-inch inside the footwear, is classified under subheading 6404.19.35, HTSUS, as open-heeled footwear, or under subheading 6404.19.90, HTSUS, as other footwear? LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 2304-06-100095 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because Protestant alleges that this protest involves questions of law or fact that have not been ruled upon by the Commissioner of Customs or his designee or by the customs courts. Specifically, Protestant argues that the heel is fitted so that the foot sits 3/4-inch inside the subject footwear, preventing the footwear from being classified as open-heeled. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs. The HTSUS provisions under consideration are as follows: 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 overlapping the upper: * * * 6404.19.35 Other Other: * * * 6404.19.90 Valued over $12/pair The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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 EN to heading 6404, HTSUS, states the following: This heading covers footwear with uppers (see General Explanatory Note, Part (D)) made of textile materials and with outer soles (see General Explanatory Note, Part (C)) made of the same materials as the footwear of heading 64.03 (see the Explanatory Note to that heading). The EN to heading 6403, HTSUS, states, in pertinent part, the following: This heading covers footwear with uppers (see General Explanatory Note, Part (D)) made of leather and with outer soles (see General Explanatory Note, Part (C)) made of :   (1)   Rubber (as defined in Note 1 to Chapter 40).   (2)   Plastics.   (3)   Woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye, no account being taken of any resulting change of colour (see Note 3 (a) to this Chapter and General Explanatory Note, Part (E)). * * * * * * * * * * * * At GRI 1, there is no dispute that the subject merchandise is classified in heading 6404, HTSUS, or, at GRI 6, in subheading 6404.19, as other footwear with outer soles of rubber or plastic and uppers of textile. The dispute is at the 8-digit level regarding whether the subject merchandise has an open heel. Protestant argues that the fact that the footwear allows the foot to sit 3/4-inch inside the shoe gives the footwear a closed heel. T.D. 93-88, dated October 25, 1993, defines “open-heeled shoes” as footwear in which “all or part of the back of the wearer’s heel can be seen.” CBP has consistently adhered to this definition. See, e.g., HQ W968365, dated April 21, 2010; HQ 955345, dated March 9, 1994; HQ 955282, dated March 4, 1994. In examining the submitted sample, we found that, despite the fraction of an inch of the heel that the footwear covers, the majority of the wearer’s heel can be seen when wearing this shoe. As such, we find that the subject footwear contains an open heel. As a result, it is classified in subheading 6404.19.35, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels;…: Other.” We note that a possible issue that was raised here was whether the subject merchandise contains a foxing-like band, the resolution of which could affect classification in subheading 6404.19.35, HTSUS. We note, however, that the phrase “footwear with open toes or open heels” is separated from the rest of the language for this subheading by a semicolon. Thus, it is considered separately as a requirement for this subheading. As a result, the subject footwear is classified in subheading 6404.19.35, HTSUS, by virtue of being open-heeled footwear. We do not reach the issue of whether it contains a foxing-like band. HOLDING: Under the authority of GRI 1, Meramec’s footwear is provided for in heading 6404, HTSUS, and specifically under subheading 6404.19.35, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels;…:Other.” The general, column one duty rate at the time of entry was 37.5%. You are instructed to DENY the protest. 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 or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, 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