Application for Further Review of Protest No. 4909-12-100510; Tariff Classification of footwear

HQ H237600 October 31, 2018 CLA-2 OT:RR:CTF:TCM H237600 GaK CATEGORY: Classification TARIFF NO.:6402.99.31; 6402.99.49; 6405.20.90 Port Director, Area Port of San Juan U.S. Customs and Border Protection City View Plaza-Suite 3000 #48 Rd. 165 Km. 1.2 Guaynabo, PR 00968-8000 Attn: Laramarie Calero, Import Specialist RE: Application for Further Review of Protest No. 4909-12-100510; Tariff Classification of footwear Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 4909-12-100510, filed on November 28, 2012, on behalf of Distribuidora Lequar (“Protestant”). The AFR concerns the tariff classification of footwear under the Harmonized Tariff Schedule of the United States (“HTSUS”). We also considered the samples submitted on September 2, 2014. FACTS: This AFR concerns the tariff classification of footwear entered in three entries on July 29, 2011, August 8, 2011, and November 23, 2011, and liquidated on June 29, 2012, June 29, 2012, and June 1, 2012, respectively. All of the styles were entered under subheading 6402.99.31, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Other.” Style D-LS4828 was liquidated and rate advanced under subheading 6402.99.80, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Other: Valued over $6.50 but not over $12/pair.” Styles H-Nuff-06, Fran-PZ, and Fran-P were liquidated and rate advanced under subheading 6404.19.35, 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 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.” Styles Maego 1 and Maego 3 were liquidated and rate advanced under subheading 6404.19.35, 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 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: Other.” The Protestant argues that styles D-LS4828 and H-Nuff-06 are properly classified under subheading 6402.99.31, HTSUS, and styles Fran-PZ, Fran-P, Maego 1 and Maego 3 are properly classified under subheading 6405.20.90, HTSUS, which provides for “[o]ther footwear: With uppers of textile materials: Other.” Style D-LS4828 is a women’s, slip-on, below-the-ankle shoe with a wedge heel that measures approximately 1 inch tall. The outer sole facing the ground is composed of rubber or plastics. The shiny rubber/plastic upper has textile edging around the topline and a velvet bow that is securely fastened with multiple stitches over the toes. The commercial invoice indicated that the value of style D-LS4828 is greater than $6.50, but less than $12.00 per pair. Style H-Nuff is a women’s high-heel sandal. The upper consists of several straps. One strap over the toes and lasted on either side and a thin strap on either side of the heel and around the ankle. The shoe is secured with a metal buckle on the lateral side. The external surface area of the upper (“ESAU”) is predominantly a shiny rubber/plastic. This style has a molded rubber/plastic midsole/outsole unit incorporating a spike heel measuring approximately 2 inches tall. The external surface of the outer sole that faces the ground is rubber/plastic. Styles Fran-PZ and Fran-P are below-the-ankle, open-toe/closed heel, women’s shoes with flocked uppers and soles. The majority of the ESAU of both styles is made up of textile fibers giving the appearance of suede. Each shoe also has a functional slide-fastener positioned vertically at the back of the heel, and a textile “rosette” securely fastened (stitched and glued) to the lateral side. Style Maego 1 is an open wedge-heel/open-toe, women’s shoe with flocked uppers and soles. The faux suede upper is decorated throughout with fan-shaped cutouts and small plastic “rhinestones.” Style Maego 3 is an open-toe, closed wedge-heel women’s shoe with flocked uppers and soles. The faux suede upper consists of two straps measuring approximately 1 inch, one across the toes, and one around the ankle decorated with fringe and a securely fastened textile flower on the strap. A functional slide fastener is placed vertically at the back of the heel. The Fran-PZ, Fran-P, Maego 1, and Maego 3 have outer soles of applied textile fibers covering the majority of the surface area facing the ground. ISSUE: What is the proper tariff classification under the HTSUS for the subject merchandise? 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 on November 28, 2012, within 180 days of the above referenced liquidations, pursuant to 19 U.S.C. § 1514(c)(3). (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 4909-12-100510 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Merchandise imported into the U.S. 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 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. The 2011 HTSUS headings under consideration are the following: 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…. 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: * * * 6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: * * * 6405 Other footwear: 6405.20 With uppers of textile materials: 6405.20.90 Other…. * * * Note 4 to Chapter 64, HTSUS, provides: 4. 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; 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. Pursuant to Note 4 to Chapter 64, the classification of the merchandise at issue depends on the materials comprising the ESAU and the outer sole that is in contact with the ground, with no account being taken of the accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelets stays or similar attachments. On November 3, 2011, the HTSUS was modified to add Additional U.S. Note 5 to Chapter 64, HTSUS, which states: 5. For the purposes of determining the constituent material of the outer sole pursuant to note 4(b) of this chapter, no account shall be taken of textile materials which do not possess the characteristics usually required for normal use of an outer sole, including durability and strength. Additional U.S. Note 5 to Chapter 64, HTSUS, did not become effective until December 3, 2011. We note that all styles of footwear at issue were entered prior to December 3, 2011. Therefore, while styles Fran-PZ, Fran-P, Maego 1, and Maego 3 have soles with textile materials, the Additional U.S. Note 5 to Chapter 64, HTSUS, is not applicable here. The ESAU of style D-LS4828, including accessories or reinforcements, is 86.7 percent rubber/plastic and 13.3 percent textiles and therefore, the ESAU consists primarily of rubber/plastic. Subheading 6402.99.31, HTSUS, requires that over 90 percent of the ESAU consist of rubber/plastic. Accordingly, style D-LS4828 cannot be classified under subheading 6402.99.31, HTSUS, and is properly classified in heading 6402, HTSUS, specifically, subheading 6402.99.40, HTSUS, which provides for “[o]ther 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 ESAU of style H-Nuff-06, including accessories or reinforcements, is 98.9 percent rubber/plastic and 1.1 percent metal. The external surface area of the outer sole in contact with the ground is wholly of rubber/plastic. Therefore, style H-Nuff-06 is properly classified under subheading 6402.99.31, HTSUS, which provides for “[o]ther 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 (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: Other.” The ESAU of styles Fran-PZ, Fran-P, Maego 1, and Maego 3 is made up of textile fibers giving the appearance of suede. The external surface area of the outer sole are of rubber/plastic with applied textile fibers covering the majority of the surface area facing the ground. Pursuant to Note 4(b) to Chapter 64, HTSUS, the constituent material of the outer sole shall be determined by the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements. Since these styles were entered prior to the addition of Additional U.S. Note 5 to Chapter 64, HTSUS, these styles are considered to have textile uppers and outer soles for classification purposes. Accordingly, styles Fran-PZ, Fran-P, Maego 1, and Maego 3 are properly classified in heading 6405, HTSUS, specifically, subheading 6405.20.90, HTSUS, which provides for “[o]ther footwear: With uppers of textile materials: Other.” HOLDING: By application of GRIs 1 and 6, the subject merchandise is classified as follows: Style D-LS4828 is properly classified under heading 6402, HTSUS, specifically subheading 6402.99.40, HTSUS, which provides for “[o]ther 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 2011 column one general rate of duty is 37.5% ad valorem. Style H-Nuff-06 is properly classified under heading 6402, HTSUS, specifically subheading 6402.99.31, HTSUS, which provides for “[o]ther 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 (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: Other.” The 2011 column one general rate of duty is 6% ad valorem. Styles Fran-PZ, Fran-P, Maego 1, and Maego 3 are properly classified under heading 6405, HTSUS, specifically subheading 6405.20.90, HTSUS, which provides for “[o]ther footwear: With uppers of textile materials: Other.” The 2011 column one general rate of duty is 12.5% ad valorem. The Protest should be DENIED with respect to the tariff classification of style D-LS4828. The Protest should be GRANTED with respect to the tariff classification of styles H-Nuff-06, Fran-PZ, Fran-P, Maego 1, and Maego 3. In accordance with the 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. No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage 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