Application for Further Review of Protest No: 2904-06-10031; Tariff Classification of Woman’s Footwear

HQ W968365 April 21, 2010 CLA-2 OT:RR:CTF:TCM W968365 ASM CATEGORY: Classification TARIFF NO.: 6404.19.35 Port DirectorU.S. Customs and Border Protection 8337 NE Alderwood Rd. Portland, OR 97220 Re: Application for Further Review of Protest No: 2904-06-10031; Tariff Classification of Woman’s Footwear Dear Port Director: The following is our decision regarding the Application for Further Review (AFR) of Protest No. 2904-06-10031, timely filed on June 14, 2006, on behalf of Nike ™ USA, Inc. The AFR concerns the classification by U.S. Customs and Border Protection (CBP) of certain footwear under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise at issue is a woman’s slip-on shoe identified as Style Number 302437. The shoe upper is made of a textile canvas material and has a molded plastic and rubber sole. There is also a heel “ridge” made of canvas that is only 1/2 inch high which exposes the wearer’s heel when the shoe is worn. ISSUE: What is the proper tariff classification under the HTSUS for the subject merchandise? LAW AND ANALYSIS: The protest was properly filed 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 December 18, 2004.  (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. 2904-06-10031 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c). The decision against which the protest was filed is alleged to involve matters not previously ruled upon by the Port or the Commissioner of Customs. Specifically, the importer argues that the shoe has a “foxing” band and is properly classified in subheading 6404.19.80, HTSUS.1 The importer reasons that the presence of a “foxing” band precludes classification of the shoes in subheading 6404.19.35, HTSUS. 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. The following 2005 HTSUS provisions are under consideration: 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: Valued over $6.50 but not over $12/pair ________________ 1 “…a ‘foxing-like band’ is a band around a substantial portion of the lower part of the upper which has either been attached (cemented sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole. See T.D. 93-88. In this instance, it is important to note that GRI 6 is applicable and provides as follows: For legal purposes, the classification of goods in the subheadings 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. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions. The footwear definitions are merely guidelines but state, in pertinent part, that for footwear classification purposes, “open” is defined as “[i]n open heeled shoes, all or part of the back of the wearer's heel can be seen”. In addition, CBP interprets the “heel” to be the rearmost boney part of the human foot, the top of which is located just below the Achilles tendon. See, e.g., Headquarters Ruling Letter (HQ) 963224, dated March 22, 2002. In this instance, the heel ridge of the subject shoe is only 1/2 inch high. As such, the heel of the shoe exposes most of the rearmost boney part of the average human foot. Since almost all of the wearer’s heel is exposed and visible, the subject shoe has met the definition of an “open heel” contained in T.D. 93-88. Furthermore, the subject provision contained at subheading 6404.19, HTSUS, is marked with a semi-colon after the phrase “Footwear with open toes and open heels” and is to be read independently of the following text of the heading. Accordingly, the reference set forth after the semi-colon, “except footwear having a foxing or foxing-like band”, does not apply. In view of the foregoing, we find that the subject sample is an “open heel” shoe that is specifically provided for by the language contained in subheading 6404.19.35, HTSUS. HOLDING: The subject merchandise, identified as Style Number 302437, was correctly classified in 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; 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 2005 general column one rate of duty was 37.5 percent ad valorem. 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