CLA-2:OT:RR:CTF:TCM H005104 JRB
Tariff No.: 6404.19.3580
Area Director
JFK International Airport Area
C/O Chief, Liquidation and Protest Branch
Bldg #77
JFK International Airport
Jamaica, New York 11430
RE: Application for Further Review of Protest number 4701-06-100549; Classification of the Instride® Advantage™ Dual Purpose Ankle-Foot Gauntlet
Dear Area Director:
This letter is in response to your memo dated December 22, 2006, forwarding the Application for Further Review (AFR) of Protest number 4701-06-100549, filed by Instride, LLC (protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification and liquidation of the Instride® Advantage™ Dual Purpose Ankle Foot Gauntlet under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise that is the subject of this protest is identified as the Instride® Ankle Foot Gauntlet. It consists of a textile (neoprene) upper that covers the wearer’s forefoot, ankle, and toes. The separately applied outer sole is constructed from the same textile/neoprene material but it is covered with a rubber/plastic application. CBP Laboratory and Scientific Services Report Number NY20051854, dated March 22, 2006, indicates that the product consists of 61.3% textile materials and 38.7% rubber or plastic materials. The product is secured to the user’s foot by a Velcro™ connection around the ankle. The heel is completely open. A picture of the merchandise follows.
The protestant made six entries of the subject merchandise through your port between May 13, 2005 and December 10, 2005 under heading 6115, HTSUS, which provides for footwear without applied soles, stockings and other hosiery, including those for varicose veins. On August 24, 2006, you issued a Request for Information (CBP Form 28) requesting that the importer submit written information from a prior meeting along with other procedural information. The entries were liquidated on June 30, 2006 and July 7, 2006 under heading 6404, HTSUS, which provides for footwear with outer soles of leather, plastics, or rubber and uppers of textiles. The protestant then filed a protest on these six entries on August 9, 2006, arguing for classification in heading 6307, HTSUS, which provides for other made-up articles of textiles.
ISSUE:
Whether the subject merchandise is classifiable in heading 6307, HTSUS, as other made up articles of textiles or as footwear in heading 6404, HTSUS, as footwear with uppers of textiles and outer soles of plastic or rubber?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable as a classification decision pursuant to 19 U.S.C. §1514(a)(2). The protest was timely filed on August 9, 2006, within 180 days of the liquidation of the first entry giving rise to the protest. See 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 4701-06-100549 was properly accorded because the port’s decision is alleged to be inconsistent with a ruling on the same or substantially similar merchandise. See 19 C.F.R. §174.24(a). Specifically, the protestant cites New York Ruling Letter (NY) K89724, dated September 30, 2004; NY L80096, dated October 12, 2004; and NY L85138, dated May 26, 2005, which classified various ankle support products in heading 6307, HTSUS.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The 2005 HTSUS provisions under consideration are:
6307 Other made up articles, including dress patterns:
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Chapter 64, Note 1, HTSUS, provides in relevant part (emphasis added):
This chapter does not cover:
(b) Footwear of textile material, without an outer sole glued, sewn or otherwise affixed or applied to the upper (section XI)
Chapter 64, Note 4, HTSUS, provides in relevant part:
Subject to note 3 to this chapter:
(b) 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.
The term “outer sole” is defined in the Explanatory Note (EN) to Section XII (which includes heading 6404, HTSUS). EN (C) provides: “[t]he term ‘outer sole’ as used in headings 64.01 to 64.05 means that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground.”
CBP has determined that the test on whether or not a product has an outer sole that has been affixed to the product is whether or not there is a “line of demarcation” between the upper and the outer sole such that the outer sole is a completely separate component prior to its application to the upper. See Headquarters Ruling Letter (HQ) 967659, dated July 1, 2005; HQ 967851, dated November 18, 2005; and HQ 956921, dated November 22, 1994. In particular the “line of demarcation” has been defined as “the line along which the sole ends and the upper begins.” See Treasury Decision (T.D.) 93-88 (27 Cust. Bull. & Dec. 46), dated October 25, 1993. In addition, the product must not be designed to wear inside other footwear. Id.
Applying these definitions to the present merchandise, the product consists of two pieces of material that are sewn together with a strip of material covering the seam. The seam is located on the edges where the wearer’s foot would touch the ground. In addition, this office was able to completely unstitch the piece of material that would come in contact with the ground. We believe that this product does have a line of demarcation indicating there is a separate piece of textile material that touches the ground. The seam is the line of demarcation and the ability to separate the two components is a clear indication that there is a separately applied outer sole. The separate piece of material is the outer sole of the footwear because this piece of material is the portion of the product that will come in contact with the ground. Thus, this product cannot be excluded from classification in Chapter 64, HTSUS, because it has a separately applied outer sole. Furthermore, the plastic is the material having the greatest surface area in contact with the ground because the applied outer sole is completely covered in plastic. Therefore, classification in heading 6404, HTSUS, is appropriate.
Finally, in your submission you contend that the product is similar to the products in New York Ruling Letters (NY) K89724, dated September 30, 2004; L80096, dated October 12, 2004; and L85138, dated May 26, 2005. The product that was the subject of NY L85138 was a textile ankle wrap that was a single piece of textile material that the user simply wrapped around their ankle. In response to this protest, this office, requested and reviewed the files for NY K89724 and L80096 to determine if the products were substantially similar to the product that is the subject of this protest. Based on our review of both of these files we are unable to determine whether or not this product is substantially similar to the product before us. Since we are unable to determine whether or not these rulings describe substantially similar products we believe that the protestant cannot rely on these rulings when classifying its merchandise. Thus, none of these rulings are controlling in this case.
HOLDING:
By application of GRI 1, the Instride Ankle Foot Gauntlet is classified in heading 6404, HTSUS, more specifically, it is classified in subheading 6404.19.3580, HTSUSA, which provides for “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: [o]ther: [f]ootwear 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 foot wear 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: [o]ther… [o]ther: [o]ther…” The 2005 column one, general rate of duty, is 37.5% 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