CLA-2 CO:R:C:G 088594 NLP
District Director
U.S. Customs Service
555 Battery Street
P.O. Box 2450
San Francisco, CA 94126
RE: Protest No. 2809-90-101810, dated September 27, 1990; Turned
Footwear; subheading 6403.99.60; subheading 6403.99.90;
subheading 6403.59.15; item 700.20, TSUS
Dear District Director:
The following is our response to the Protest and Request for
Further Review No. 2809-90-101810, dated September 27, 1990,
concerning the tariff classification of turned footwear.
FACTS:
The footwear at issue is men's and women's casual shoes with
leather uppers and rubber/plastic soles of turned construction.
Upon importation the men's shoes were classified in
subheading 6403.99.60, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for footwear with
uppers of leather and outer soles of material other than leather,
other footwear, other, other, for men. The rate of duty is 8.5
percent ad valorem. The women's shoes were classified in
subheading 6403.99.90, HTSUSA, which provides for footwear with
uppers of leather and outer soles of material other than leather,
other footwear, other, for other persons, valued over $2.50 per
pair. The rate of duty is 10 percent ad valorem.
The protestant argues that the correct classification for
the instant footwear is in subheading 6403.59.15, HTSUSA, which
provides for other footwear with outer soles of leather, other,
turn or turned footwear. The rate of duty is 2.5 percent ad
valorem. It is the protestant's contention that there was a
uniform and established practice to classify all turned leather
footwear at a 2.5 percent duty rate under item 700.2020, Tariff
Schedules of the United States (TSUS), which provided for
footwear, of leather, turn or turned footwear. In addition, the
protestant states that the HTSUSA, which was meant to be revenue
neutral, inadvertently failed to include a special provision for
turned footwear with rubber/plastic soles in subheading 6403.99,
HTSUSA, but did provide a 2.5 percent rate for turned footwear
with leather soles under subheading 6403.59.15, HTSUSA. Finally,
protestant argues that because there is a change in a uniform and
established practice, which results in a higher duty rate, they
must first be notified of this change by publication in the
Federal Register.
ISSUE:
What is the HTSUSA classification of turned footwear with a
leather upper and a rubber/plastic sole.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA, which became
effective as the tariff law of the United States on January 1,
1989, is governed by the General Rules of Interpretation (GRI).
GRI 1 provides that "classification shall be determined according
to the terms of the headings and any relative section or chapter
notes, and provided such headings or notes do not otherwise
require, according to the remaining GRI's taken in order."
Subheading 6403.59.15, HTSUSA, provides for the following:
footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather, other footwear with
outer soles of leather, other, turn or turned footwear.(Emphasis
added) Though the subject footwear has uppers of leather and is
of turned construction, it is excluded from classification in
subheading 6403.59.15, HTSUSA, since its outer soles are not made
of leather. Because the subject men's and women's shoes have
uppers of leather and outer soles of rubber/plastic, they are
more properly described in subheadings 6403.99.60, HTSUSA, and
6403.99.90, HTSUSA, respectively.
The fact that the instant footwear is subject to a higher
duty rate results from a change made by Congress in enacting a
new tariff schedule, the HTSUSA. It does not reflect a change in
a uniform and established practice by Customs and publication of
notice in the Federal Register is, therefore, not necessary.
However, it is noted that by a document published as T.D. 89-1 in
the Federal Register on December 21, 1988 (53 FR 51244), the
Customs Service advised the public that effective January 1,
1989, the U. S. intended to replace the TSUS by acceding to the
International Convention on the Harmonized Commodity Description
and Coding System (HS). The notice set forth the background of
the HS, the HTSUS and interim amendments to the Customs
Regulations necessitated by the adoption of a new U.S tariff.
The public was invited to comment on the changes.
Moreover, the language in the two pertinent provisions has
changed. Under the TSUS, leather footwear of turn or turned
construction was classifiable in item 700.20, regardless of the
composition of the soles. Under the HTSUSA, leather footwear of
turn or turned construction is classifiable in subheading
6403.59.15, HTSUSA, only if the outer soles are made of leather.
Turned footwear with uppers of leather and soles made of material
other than leather are classifiable in different subheadings in
the HTSUSA.
HOLDING:
Footwear with leather uppers and soles of rubber/plastic of
turned construction for men and women are classifiable in
subheading 6403.99.60, HTSUSA, and in subheading 6403.99.90,
HTSUSA, respectively.
The protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division