OT:RR:CTF:FTM H278605 PJG
Mr. Roger Crain
Customs Laboratory Services LLC
11901 Reynolds Avenue
Potomac, Maryland 20854-3334
RE: Revocation of NY N270791; tariff classification of two styles of women’s sandals
Dear Mr. Crain:
On December 8, 2015, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N270791 to Ms. Tina Fang at Steve Madden, Ltd. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of two styles of women’s sandals identified as style names “Faith” and “Lu.” We have since reviewed NY N270791 and determined it to be in error because the ruling erroneously stated that less than 90 percent of the external surface area of the upper for each sandal is composed of rubber or plastics. Accordingly, NY N270791 is revoked.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on April 3, 2019, in Volume 53, Number 9, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N270791, the women’s sandal identified as style name “Faith” was described as follows:
“Faith” is an open toe/open high heel, sandal with an upper consisting of three straps at the forefoot, mid-foot and ankle. All of the straps have attached loops which allow a thin strap measuring approximately 4mm to pass through and be tied/wrapped around the ankle and calf. The straps do not cover the ankle. According to your letter the thin straps account for 40 percent of the external surface area of the upper (esau) and the wider rubber and plastics straps account for less than 90 percent of the external surface area of the upper. The shoes have no foxing or foxing-like band.
In NY N270791, the women’s sandal identified as style name “Lu” was described as follows:
“Lu” is women’s, below-the-ankle, closed toe/closed heel sandal with an outer sole of rubber or plastics. The external surface area of the upper is a combination of plaited textile strips measuring less than 4mm and rubber/plastics at the forefoot, heel and ankle. The rubber or plastics predominates as the constituent material but accounts for less than 90 percent of the external surface area of the upper. The ankle strap has a metal buckle closure at the lateral side of the sandal. You provided an F.O.B. value of over $6.50 but under $12 per pair.
In NY N270791, CBP classified the “Faith” style sandal in subheading 6402.99.4960, HTSUSA, 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 6402.99.33 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: Other: Other: For women” and classified the “Lu” style sandal in subheading 6402.99.8061, HTSUSA, which provides for “Other 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: Other: For women.”
Along with your request for reconsideration, you submitted one sample of each pair of sandals at issue.
ISSUE:
Whether the subject two styles of women’s sandals are classified under subheading 6402.99.3165, HTSUSA, as footwear the uppers of which over 90 percent of the external surface area is plastics, in subheading 6402.99.4960, HTSUSA, as other footwear with open toes and open heels, or in subheading 6402.99.8061, HTSUSA, as other footwear valued over $6.50 but not over $12/pair.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 2019 HTSUSA provisions under consideration 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:
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 6402.99.33 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:
* * *
6402.99.49 Other
* * *
Other:
* * *
6402.99.4960 For women
* * *
Other:
6402.99.80 Valued over $6.50 but not over $12/pair * * *
Other:
* * *
6402.99.8061 For women
Note 3(a) to Chapter 64, HTSUS, states as follows:
[t]he terms “rubber” and “plastics” include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color;
Note 4 to Chapter 64, HTSUS, states 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;
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.
You argue that, based on the material composition of the subject two women’s sandals, they should be classified in subheading 6402.99.3165, HTSUSA, which provides for “Other 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: Other: For women: Other.”
Samples of the “Lu” and “Faith” style sandals were sent to the CBP Laboratories and Scientific Services Directorate (“CBP laboratory”) in Newark, New Jersey for their analysis. The CBP laboratory analyzed the left foot “Faith” style sandal and determined that “the upper of the sandal consists of a thin strap measuring approximately 4 millimeters wide and four pieces of wider straps measuring on average approximately 12, 25, 12, and 13 millimeters wide respectively.”
The CBP laboratory analyzed the left foot “Lu” style sandal and determined that “the upper of the sandal is constructed of a Y shaped strap measuring on average approximately 77 millimeters wide, a T shaped strap measuring on average approximately 54 millimeters wide, straps with even width measuring approximately 9 millimeters, and braided straps measuring approximately 8 millimeters wide consisting [of] three thin straps of approximately 4 millimeters wide each.”
With respect to the “Faith” and “Lu” style sandals, the CBP laboratory stated that “the upper material is composed of a knit fabric coated, covered, or laminated with an external layer of rubber/plastic and the rubber/plastic is visible to the naked eye.”
It is not in dispute that the “Faith” and “Lu” style sandals are classifiable under heading 6402, HTSUS, specifically, under subheading 6402.99, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other.” The dispute lies at the six-digit subheading level. We have reviewed the photographs of the samples that were submitted to the National Commodity Specialist Division and later forwarded to the CBP laboratory, and we have determined that the “Faith” and “Lu” style sandals have uppers of which over 90 percent of the external surface area, including the metallic piece at the end of the straps on the “Faith” style sandals and the buckles on the “Lu” style sandals, is rubber or plastics. The determination that the upper material is composed of a knit fabric coated, covered, or laminated with an external layer of rubber or plastics was provided by the CBP laboratory and, based on our observation of the photographs of the samples, over 90 percent of the external surface area of the upper is composed of that material. In NY N270791, we erroneously stated that less than 90 percent of the external surface area of the upper is composed of rubber or plastics.
Accordingly, we find that the two subject women’s sandals are classified in subheading 6402.99.31, HTSUSA, which provides for “Other 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.”
HOLDING:
Under the authority of GRIs 1 and 6 the two subject women’s sandals, specifically, “Lu” and “Faith”, are classified under heading 6402, HTSUS, and specifically in subheading 6402.99.31, HTSUS, which provides for “Other 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 2019 column one, general rate of duty is 6 percent 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/.
EFFECT ON OTHER RULINGS:
NY N270791, dated December 8, 2015, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division