CLA-2 OT:RR:CTF:TCM HQ H248400 TNA
Port Director, Service Port-Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802
Attn: Elvira Mazich, Senior Import Specialist
Re: Protest and Application for Further Review No: 2704-12-103619; Classification of men’s corduroy moccasins
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2704-12-103619, timely filed on November 20, 2012, on behalf of R.G. Barrie Corp. (“R.G. Barrie” or “Protestant”) regarding the tariff classification of men’s corduroy moccasins under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of two styles of men’s moccasins: Style Nos. DW023 and DW030. These styles are identical except for size; DW030 is the wide version of DW023. They are of a slip-on type, and have a closed toe and closed heel that do not cover the ankle. They have cotton uppers and soles of rubber or plastic. A layer of knit fabric covers the visible surface area of the cup sole, including the side walls. They are valued at less than three dollars per pair.
After this protest and AFR were received by CBP Headquarters, CBP obtained a sample of Style No. DW030 from the contested shipment. The sample was examined by the National Import Specialist (“NIS”) for footwear, and then sent to the CBP laboratory for testing. The resulting laboratory report, SV20140443, dated April 15, 2014, found that the exterior surface area of the upper is a vegetable textile material. The laboratory also found that the sample contained a rubber or plastic outer sole to which a thin layer of textile material had been applied. The laboratory found that the sample’s composition by weight was 79 percent rubber or plastic and 21 percent textile. Lastly, the laboratory noted presence of a foxing-like band on the tested sample. This is consistent with the results of an independent report of Style Number DW023 obtained by Protestant from Customs Laboratory Services, LLC.
The subject merchandise entered on December 8, 2011 in subheading 6404.19.36, 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: With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” In a Post Entry Adjustment (“PEA”), Protestant also claimed that the subject merchandise was entitled to a reduced duty rate under subheading 9902.13.91, HTSUS, which provides for “Other footwear with uppers of vegetable fibers, for men (provided for in subheadings 6404.11.41, 6404.11.51, 6404.11.61, 6404.11.71, 6404.11.81, 6404.19.36, 6404.19.42, 6404.19.52, 6404.19.72, 6404.19.82 and 6405.20.30).”
The subject merchandise was liquidated on August 31, 2012, in subheading 6404.19.39, 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: Other.” Upon filing this Protest and AFR, Protestant claims classification as entered, as well as the reduced duty rate of subheading 9902.13.91.
ISSUE:
Where are the subject moccasins classified?
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 of the first entry. (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. 2704-12-103619 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because Protestant alleges that the specific circumstances of this protest have not been ruled by the Commissioner of Customs or his designee or the Customs courts.
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 HTSUS provisions under consideration are as follows:
6404 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:
Other:
6404.19.36 With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter
* * *
6404.19.39 Other
* * *
Other
Valued not over $3/pair:
Other:
6404.19.52 With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter
* * *
9902.13.91 Other footwear with uppers of vegetable fibers, for men (provided for in subheadings 6404.11.41, 6404.11.51, 6404.11.61, 6404.11.71, 6404.11.81, 6404.19.36, 6404.19.42, 6404.19.52, 6404.19.72, 6404.19.82 and 6405.20.30)
Note 4 to Chapter 64, HTSUS, states the following:
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.
Additional U.S. Note 5 to Chapter 64, HTSUS, states the following:
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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
We begin by noting our agreement with Protestant that the textile material added to the rubber or plastics outer sole of the subject footwear should be disregarded per Additional U.S. Note 5 to Chapter 64, HTSUS, supra., thus resulting in classification under heading 6404, HTSUS, as footwear with outer soles of rubber or plastics instead of heading 6405, HTSUS, as “other footwear”. Accordingly, this dispute is at the subheading level and is governed by GRI 6, which provides:
For legal purposes, the classification of goods in the subheading 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.
In this regard, we also agree with Protestant that the subject footwear is described by the terms of subheading 6402.19, HTSUS. However, we note that both the subheading assigned to the subject merchandise at entry (6404.19.36, HTSUS) and the subheading in which CBP classified the instant footwear at liquidation (6404.19.39, HTSUS), both cover “…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…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….”
In T.D. 93-88, dated October 25, 1993, CBP defined “foxing-like band” as:
Briefly, a “foxing-like band” is a band around a substantial portion of the lower part of the upper which either has been attached (cemented, sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole…
To directly define “foxing-like band,” is it necessary to first define a foxing band. A typical foxing band is a rubber tape, about 1 inch high by 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outersole in, for example, a basketball shoe. If a shoe has such a foxing or something you cannot distinguish from a foxing without cutting, it can be assumed to have a “foxing-like band.”…
When the CBP laboratory tested the subject merchandise, it noted the presence of exactly the type of band defined as a “foxing-like band” in T.D. 93-88. This band was also noted in the NIS’ examination of the sample before it was tested by the laboratory. It was also confirmed by the independent laboratory results submitted by Protestant. As a result, the subject merchandise is precluded from classification in subheading 6404.19.36, HTSUS, and subheading 6404.19.39, HTSUS. As a result, we examine alternate subheadings.
Subheading 6404.19.52, HTSUS, 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: Other: Valued not over $3/pair: Other: With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The terms of this subheading describe the subject merchandise in its entirety, from the material of its soles and uppers, to the textile material that meets the terms of Additional U.S. Note 5 to Chapter 64, HTSUS, to the cost of the merchandise. As a result, the subject merchandise is classified in subheading 6404.19.52, HTSUS.
Lastly, in its Post Entry Adjustment, Protestant claimed classification in subheading 9902.13.91, HTSUS, a temporary provision that allows a duty reduction on certain merchandise entered before December 31, 2012. Specifically, subheading 9902.13.91, HTSUS, provides for a duty reduction on “Other footwear with uppers of vegetable fibers, for men (provided for in subheadings 6404.11.41, 6404.11.51, 6404.11.61, 6404.11.71, 6404.11.81, 6404.19.36, 6404.19.42, 6404.19.52, 6404.19.72, 6404.19.82 and 6405.20.30).” The subject merchandise meets these terms because it is classified in subheading 6404.19.52, HTSUS, and consists of other footwear for men, containing uppers of vegetable fibers. As a result, entries of the subject merchandise made on or before December 31, 2012, are eligible for reduced duty liability.
HOLDING:
By application of GRI 1, the subject footwear is classified in heading 6402, HTSUS. It is specifically subheading 6402.19.52, 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: Other: Valued not over $3/pair: Other: With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The general column one rate of duty is 7.5% ad valorem.
Furthermore, the subject merchandise meets the terms of subheading 9902.13.91, HTSUS, provides for a duty reduction on “Other footwear with uppers of vegetable fibers, for men (provided for in subheadings 6404.11.41, 6404.11.51, 6404.11.61, 6404.11.71, 6404.11.81, 6404.19.36, 6404.19.42, 6404.19.52, 6404.19.72, 6404.19.82 and 6405.20.30).” The general column one rate of duty for products that meet the terms of subheading 9902.13.91, HTSUS, and were entered on or before December 31, 2012, is 6.4% ad valorem.
Because reclassification of the merchandise as indicated above will result in the same rate of duty as the Protestant claimed, you are instructed to allow the protest in full.
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 website 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