Application for Further Review of Protest No. 1704-14-100788; Classification of boy’s shoesAttn. Michael Phillips, Import Specialist

HQ H295154 December 7, 2018 CLA-2 OT:RR:CTF:FTM H295154 GaK CATEGORY: Classification TARIFF NO.: 6402.91.80 U.S. Customs & Border Protection 1000 Second Ave., Suite 2100 Seattle, WA 98104 RE: Application for Further Review of Protest No. 1704-14-100788; Classification of boy’s shoes Attn.: Michael Phillips, Import Specialist Dear Port Director: This is in response to the Application for Further Review (“AFR”) of Protest No. 1704-14-100788, received on December 8, 2014, on behalf of Target General Merchandise, Inc. (“Target” or “Protestant”). This AFR concerns U.S. Customs & Border Protection’s (“CBP”) tariff classification of boy’s shoes (“merchandise”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: This AFR concerns the tariff classification of boy’s shoes entered in ten entries from August 11, 2013 to September 1, 2013, and liquidated from August 1, 2014 to November 14, 2014. The boy’s shoes were entered under subheading 6402.91.80, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $6.50 but not over $12/pair.” The Protestant filed a Post-Entry Amendment (“PEA”) claiming the merchandise is correctly classified under subheading 6405.90.90, HTSUS, which provides for “[o]ther footwear: Other: Other.” The merchandise was liquidated as entered, under subheading 6402.91.80, HTSUS. The merchandise is a style of boy’s shoes, identified as “Toddler boy ‘Darrell’ shoes.” The shoes are above-the-ankle sneakers with uppers of less than 90 percent rubber/plastic and the balance of textile. Three straps with Velcro closures, located over the tongue, secure the shoes to the wearer. The rubber/plastic outer soles have an applied layer of textile covering the majority area touching the ground. ISSUE: Whether the boy’s shoes are classified under subheading 6402.91.80, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $6.50 but not over $12/pair,” or subheading 6405.90.90, HTSUS, which provides for “[o]ther footwear: Other: Other.” 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 for entries made on or after August 1, 2014. (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. 1704-14-100788 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 be inconsistent with certain CBP rulings concerning allegedly similar merchandise. Classification under the HTSUS is determined 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 may then be applied. The 2013 HTSUS headings under consideration are as follows: 6402 Other footwear with outer soles and uppers of rubber or plastics: * * * 6405 Other footwear: Note 4(b) to Chapter 64, HTSUS, states, in relevant part: 4. Subject to note 3 to this chapter: […] (b) 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. Additional U.S. Note 5 to Chapter 64 provides that: 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. As an initial matter, we note that Headquarters Ruling Letter (“HQ”) 964978, dated April 18, 2002, to which Protestant cites in support of its assertion that the merchandise is classifiable in heading 6405, HTSUS, has been superseded by the Additional U.S. Note 5 to Chapter 64 (“Note 5). On November 3, 2011, Presidential Proclamation 8742 enacted certain modifications to the HTSUS, including the insertion of Note 5. On January 23, 2012, CBP requested public comments on the best approach to administering Note 5, specifically, for views on subjecting relevant footwear to laboratory testing to ascertain whether the textile material on the outer sole possesses the characteristics usually required for normal use of the outer sole, including durability and strength. CBP received eight comments, one of which suggested that CBP use the SATRA TM 31 (“Martindale”) to administer Note 5, which is a variation of the Martindale Abrasion Test, used for upholstery fabric. CBP responded to the suggestion in the Customs Bulletin Vol. 47, No. 14, on March 27, 2013, as follows: After consulting with the CBP Office of Laboratory and Scientific Services, we conclude that this particular test carries inherent problems with repeatability between laboratories, and even operators within the same laboratory. Accordingly, the lack of precision significantly limits the utility of [Martindale] for the purposes of administering Note 5. Consequently, CBP does not propose to recognize [Martindale] in its administration of Note 5. [emphasis added] In the same Customs Bulletin, CBP proposed to recognize the International Organization for Standardization (“ISO”) 20871, entitled “Footwear – Test Methods for Outsoles – Abrasion Resistance” as the appropriate testing standard to determine whether the textile material possesses the characteristics usually required for normal use of an outer sole under Note 5. CBP published the final notice in the Customs Bulletin Vol. 47, No. 45, recognizing the ISO 20871 on November 13, 2013. Protestant states that Note 5 does not defeat its claim for a classification of the merchandise under heading 6405, HTSUS. Protestant argues that while Note 5 was in effect when the merchandise was entered, CBP did not issue the final notice of adopting ISO 20871 as the durability standard and that the results of the Martindale test should be considered to meet the standard under Note 5. Protestant provided an independent laboratory report which found that “some textile threads were loose” at 3,200 revolutions, dated March 4, 2014. We disagree. While CBP’s recognition of ISO 20871 was effective November 13, 2013, CBP specifically rejected the Martindale test as the acceptable test method to test the durability and strength of the textile outer sole in the March 27, 2013 proposal to accept the ISO 20871. Furthermore, the laboratory report supplied by the Protestant is dated March 4, 2014, which is several months after the final notice of adopting the ISO 20871. The Protestant had sufficient notice of CBP’s rejection of the Martindale test and acceptance of the ISO 20871. The sample of the merchandise was sent to the CBP Laboratory for testing pursuant to the ISO 20871. The CBP Laboratory found that the external surface of the outer sole is over 50 percent textile, which was removed on the three specimens after 40 meters of testing. The textile outer sole of the merchandise does not possess the characteristics usually required for normal use of an outer sole under Note 5. Therefore, the boy’s shoes are properly classified under heading 6402, HTSUS, specifically subheading 6402.91.80, HTSUS. HOLDING: By application of GRI 1, the subject boy’s shoes are classified under heading 6402, HTSUS, specifically under subheading 6402.91.80, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $6.50 but not over $12/pair.” The 2013 column one, general rate of duty is 90¢pr. + 20% 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 the internet at www.usitc.gov/tata/hts/. 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 of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division