HQ H260547
CLA-2 OT:RR:CTF:TCM H260547 TSM
Mr. Michael S. McCullough
Vandergrift Forwarding Company Inc.
9317 Cheshire Road
Sunbury, OH 43074
RE: Modification of N252090; Classification of women’s footwear.
Dear Mr. McCullough:
This is in response to your letter to the National Commodity Specialist Division (NCSD), dated July 23, 2014, in which you requested reconsideration of New York Ruling Letter (NY) N252090, issued to Eddie Bauer, LLC on April 19, 2014. In NY N252090, U.S. Customs and Border Protection (“CBP”) responded to a request for tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of six styles of women’s footwear from China. One of those footwear styles, identified as style 9XX20002 W. Lukla Pro, was classified in NY N252090 in subheading 6402.99.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Other: Valued over $12/pair.” NCSD submitted a sample of the subject merchandise to the CBP Laboratories and Scientific Services for analysis and forwarded the results to this office for a response. We have reviewed NY N252090 and found it to be in error with regard to this footwear style. For the reasons set forth below, we hereby modify NY N252090.
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. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 49, No. 23, on June 10, 2015, proposing to modify NY N252090, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
NY N252090, issued to Eddie Bauer, LLC on April 19, 2014, describes the subject merchandise as follows:
The submitted sample identified as style 9XX20002 W. Lukla Pro, is a women’s low-cut lace-up athletic shoe with a rubber or plastics outer sole and a predominately PU coated leather upper (52%) that is thick enough to change the external surface appearance from leather to plastic. The shoe has many characteristics in both styling and construction of athletic footwear. You provided an F.O.B. value over $12/pair.
In your letter dated July 23, 2014, you argued that the subject women’s footwear, style 9XX20002 W. Lukla Pro, should be classified in heading 6403, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather.” You claimed that the upper of the subject footwear is made of solid leather with a PU coating, which was placed on the leather to prevent water absorption that would weigh the footwear down. To support this claim you provided a laboratory report stating that leather comprises 52% of the external surface area of the upper of the subject footwear. You also provided a laboratory report stating that the upper of the subject footwear is comprised of the following materials: leather – 20.91%; coated leather – 36.29%; polyurethane – 3.07; textile – 39.48%; and plastic – 0.25%. CBP Laboratories and Scientific Services also examined the sample and confirmed that the external surface area was comprised of leather, textile and rubber or plastic, with the plastic coated leather as the constituent material of the upper.
ISSUE:
Whether the footwear at issue should be classified in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics,” or in heading 6403, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather.”
LAW AND ANALYSIS:
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.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.99 Other:
Other:
Other:
Other:
6402.99.90 Valued over $12/pair
* * *
6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather:
Other footwear:
6403.99 Other:
Other:
Other:
Other:
For other persons:
6403.99.90 Valued over $2.50/pair.
Note 4 to Chapter 64, HTSUS, provides in pertinent part, the following:
(a) 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.
Explanatory Note (D) to Chapter 64, HTSUS, provides, in pertinent part, the following:
If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation (e.g., tassels, pompons or braid), buckles, tabs, eyelet stays, laces or slide fasteners. The constituent material of any lining has no effect on classification.
Note 4 (a) to Chapter 64 provides that the material of the upper shall be taken to be the constituent material having the greatest external surface area. According to the record, upon laboratory examination of the sample, CBP concluded that the uppers of the subject footwear are comprised of plastic coated leather. Explanatory Note (D) to Chapter 64 provides that the constituent material of any lining has no effect on classification. Therefore, the plastic coating found on the uppers should not be considered and the constituent material of the upper having the greatest external surface area is leather. Heading 6402, HTSUS, provides for “Other footwear with outer soles and uppers of rubber or plastics.” This heading does not cover footwear with leather uppers. Therefore, the subject footwear is not classified in this heading.
The subject footwear is classified in heading 6403, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather.”
HOLDING:
By application of GRI 1, the subject footwear is classified in heading 6403, HTSUS. Specifically, it is classified in subheading 6403.99.90, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Other: Other: Other: Other: For other persons: Valued over $2.50/pair.” The general, column one rate of duty is 10 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 N252090, dated April 19, 2014, is hereby MODIFIED.
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