CLA-2 OT:RR:CTF:TCM HQ H261076 NCD
Port Director
Service Port Norfolk-Newport News
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Renee Caesar, Import Specialist
Re: Protest and Application for Further Review No: 1401-14-100216; Classification of monster boot slippers
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 1401-14-100216, timely filed on September 17, 2014 on behalf of Walmart Stores, Inc., concerning classification of monster boot slippers (“subject merchandise”) under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The merchandise at issue was entered with and liquidated by U.S. Customs and Border Protection (CBP) at the Port of Norfolk-Newport News (“the Port”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect.
FACTS:
The subject merchandise consists of GM Monster Boots and GMG Monster Boots, both of which are closed-toed and closed-heeled articles of slip-on footwear designed to impart the appearance of a monster. The exteriors of the products’ uppers are affixed with plush eyebrows and lips and covered by layers of faux hair, the varied color schemes of which account for the sole physical distinction between the two types of slippers. The outer sole of each item is white in color and is covered with raised circular dots in a checkered pattern. Based on our inspection of a GMG Monster Boot sample, it is our observation that the inner sole and outer sole contain, enclosed between them, a layer of cellular rubber measuring approximately 70 millimeters in thickness. Attached to the sample is a product label describing the slipper as a “Girls Slipper” and listing the slipper’s size as “L (2/3)”.
The subject merchandise’s constituent materials are described in detail in four separate laboratory reports, two of which were issued by private laboratory services and two of which were issued by a CBP laboratory. These reports include the following: A February 27, 2013 report by Consumer Testing Laboratories (Far East) Ltd. (“Consumer Testing Laboratories report”); a June 6, 2014 CBP laboratory (“CBP original laboratory report”); a June 26, 2014 by Customs Laboratory Services, LLC (“CLS report”); and a November 2, 2015 report supplementing the CBP laboratory’s June 6, 2014 report (“CBP supplemental laboratory report”). All four reports describe the subject merchandise as consisting of an upper of non-vegetable textile materials, a rubber/plastic outer sole covered with a textile overlay, and, along the outer sole, a series of evenly-spaced textile nodules capped with plastic dots.
The laboratory reports also provide assessments as to the thickness of the outer sole, the exact composition of the outer sole’s outer surface, and the extent to which each of the outer sole’s composite materials is in contact with the ground. The Consumer Testing Laboratories report states that the total surface area of the merchandise’s outer sole in contact with the ground is comprised 56.28 percent of textile material and 43.72 percent of rubber/plastic. The CLS report states that the material of the outer sole in contact with the ground is 87.3 percent textile material and 12.7 percent rubber/plastic. The CBP original laboratory report states that the outer sole is less than 3.5 millimeters thick and has an external surface area that is predominantly textile material. The CBP supplemental laboratory report confirms the analysis contained in the CBP original laboratory report and specifies that the surface area of the outer sole is made up 64 percent of textile and 36 percent of rubber/plastic.
The instant protest specifically pertains to three separate entries of the subject merchandise entered August 2, 2013, October 5, 2013, and November 18, 2013 in subheading 6404.19.3715, HTSUSA, 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 textile material other than 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: House Slippers.” CBP liquidated the entries on March 21, 2014 and May 9, 2014 in subheading 6404.19.3915, HTSUSA, 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: House Slippers.” Protestant asserts that the subject merchandise is properly classified in subheading 6404.19.3790, HTSUSA, 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 textile material other than 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: Other.”
ISSUES:
Whether the subject products are properly classified in subheading 6404.19.37, HTSUS, as footwear with uppers of textile material other than vegetable fibers and outer soles of rubber or plastic with textile materials having the greatest surface area in contact with the ground, or in subheading 6404.19.39, HTSUS, as footwear with outer soles of other than textiles with the greatest surface area in contact with the ground.
Whether the subject products are properly classified as “house slippers” at the ten-digit level.
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. 1401-14-100216 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by CBP or the courts.
Merchandise imported into the United States is classified under the HTSUSA. 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
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).
The HTSUSA provisions under consideration in the instant case 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:
6404.19.37 With uppers of textile material other than 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:
6404.19.3715 House Slippers
Other:
6404.19.3790 Other
6404.19.39 Other:
6404.19.3915 House Slippers
As a preliminary matter, it is undisputed that the subject monster boot slippers are properly classified at the 4-digit level in heading 6404, HTSUSA, and at the 6-digit subheading level in heading 6404.19, HTSUSA. At issue is whether the slippers are properly classified, at the 8-digit level, as footwear having outer soles with textile materials having the greatest surface area in contact with the ground. Accordingly, we initially consider whether the slippers are classifiable within subheading 6404.19.37, HTSUS.
Subheading 6404.19.37, HTSUSA, applies, inter alia, to “footwear with outer soles of rubber [or] plastics…with uppers of textile material other than 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.” (emphasis added). Additional U.S. Note 5 to Chapter 64 states as follows:
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.
Additional U.S. Note 5 to Chapter 64 normally requires that, for purposes of identifying the material making up the outer sole of an article of footwear, textile materials may only be considered if they bear the durability and strength “required for normal use of an outer sole.” However, by the terms of the eight-digit subheading itself, this note does not apply to the calculation of relative constituent material of the outer sole for purposes of classification in subheading 6404.19.37. Hence, the additional U.S. note does not operate to exclude from the subheading rubber- or plastic-soled footwear whose textile overlays do not satisfy the note’s strength and durability requirements. Compare New York Ruling Letter (NY) N268276, dated September 15, 2015 (classifying footwear on which “textile predominates as the constituent material having the greatest external surface of the outer sole but does not possess the durability and strength of a textile outer sole” in subheading 6404.19.37) with NY N245328, dated September 20, 2013 (classifying footwear on which “the heel and forefoot areas of the otherwise flat outer sole have rubber or plastics traction dots with no textile material on them” in subheading 6404.19.39). Therefore, footwear of heading 6404 is classifiable in subheading 6404.19.37 where, in addition to satisfying all other requirements of the provision, it contains an outer sole whose textile surface area in contact with the ground is greater than 50 percent, irrespective of whether or not that textile is strong and durable. See NY N268294, dated September 16, 2015; NY N267673, dated August 20, 2015; NY N261748, dated February 27, 2015; NY N258517, dated November 4, 2014; NY N254929, dated July 17, 2014; NY N251636, dated April 16, 2014; NY N250866, dated March 25, 2014; NY N250955, dated March 21, 2014; and NY N248772, dated January 14, 2014.
According to all four of the above-discussed laboratory reports, which were generated by laboratories both within and outside of CBP, the subject merchandise consists of an upper made of textile, non-vegetable material, an outer sole comprised of rubber/plastic, and a textile overlay covering the outer sole. According to both the Consumer Testing Laboratories and CLS reports, the textile overlay predominates the total surface area of the merchandise’s outsole that is in contact with the ground. These findings are consistent with both CBP laboratory reports, which state that the external surface of the outsole is made up predominantly of textile materials. Therefore, the subject merchandise can be described as footwear with outer soles of rubber or plastics, uppers of textile material other than vegetable fibers, and outer soles with textile materials having the greatest surface area in contact with the ground in subheading 6404.19.37, HTSUS. We again note that because Additional U.S. Note 5 to Chapter 64 does not apply to 6404.19.37, the overlay’s durability and strength are immaterial for purposes of classification in the subheading. Consequently, the subject footwear is properly classified at the 8-digit subheading level in subheading 6404.19.37, HTSUS.
Finally, with respect to classification of the subject merchandise at the 10-digit subheading level, Statistical Note 1(d) to Chapter 64 states as follows:
For the purposes of this chapter:
(d) The term "house slippers" covers:
Footwear with outer soles not over 3.5 mm in thickness, consisting of cellular rubber, non-grain leather, or textile material; or
Footwear with outer soles not over 2 mm in thickness consisting of poly(vinyl chloride), whether or not backed; or
Footwear which when measured at the ball of the foot has sole components (including any inner and mid-soles) with a combined thickness not over 8 mm as measured from the outer surface of the uppermost sole component to the bottom surface of the outer sole and which when measured in the same manner at the area of the heel has a thickness equal to or less than that at the ball of the foot.
As stated above, the four laboratory reports describe the products’ outer soles as “rubber/plastic”, which is not included among the materials listed in romanette (i) or (ii) to Statistical Note 1(d). Moreover, the footwear contains a covered mid-sole that, in and of itself, measures well over 8 millimeters in thickness. Consequently, the footwear cannot be described as “house slippers” under any of the three romanettes to Statistical Note 1(d). Because the label attached to the sample indicates that the merchandise is specifically designed and sized for use by non-adult “girls”, it is properly classified in subheading 6404.19.3790, HTSUSA, in which CBP classifies footwear of subheading 6404.19.37 for use by children. See NY N268294 (classifying “Kids Ballerina shoes” in subheading 6404.19.3790); and NY N268276 (classifying “children’s closed toe/closed heel” in subheading 6404.19.3790).
HOLDING:
By application of GRIs 1 and 6, the subject monster boot footwear is classified in heading 6404, HTSUSA, specifically in subheading 6404.19.3790, HTSUSA, 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 textile material other than 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: Other: Other.” The general column one rate of duty is 12.5% 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 ALLOW 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 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