CLA-2 OT:RR:CTF:TCM H213697 LWF
Port Director
Port of Salt Lake City
U.S. Customs and Border Protection
P.O. Box 22330
Salt Lake City, UT 84122
Attn: Import Specialist Meichuan Boggan
RE: Application for Further Review of Protest No. 2809-12-100073; Classification of welt footwear from China
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2809-12-100073, timely filed on February 10, 2012, on behalf of Red Wing Shoe Company, Inc. (“Red Wing”). The AFR concerns the classification of welt footwear under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise is described as Red Wing’s Irish Setter-brand, Style #818, Gunflint hunting boots (the “Boots”). The Boots possess a rubber outer sole and an upper composed of leather and textile materials. A textile and paperboard lip connects the Boots’ paperboard insole to the boot upper. The lip’s textile binding is sewn or glued to the underside of the insole, and the lip extends downwards, flush against the boot upper. A black welt runs around the edge of the tread portion of the sole. Stitching goes through the upper portion of this welt, through the shoe upper, and ultimately through the textile and paperboard lip secured on the underside of the insole board.
The protest at issue involves two entries of merchandise identical to footwear imported by Red Wing at the Service Port of Chicago on July 19, 2010, under subheading 6403.91.30, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Covering the ankle: Other: Welt footwear.” On July 30, 2010, U.S. Customs and Border Protection (CBP) issued a CF-28 Request for Information for Red Wing to provide a sample of the instant footwear, and upon receipt of the Boots, submitted the sample merchandise for laboratory testing. CBP’s Chicago Laboratory concluded in a report, dated October 15, 2010, that “[t]here does not appear to be a lip attached to the insole at a right angle,” and the Service Port of Chicago issued a CF-29 Notice of Action (“NOA”) on November 30, 2010, reclassifying the Boots under subheading 6403.91.60, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Covering the ankle: Other: Other: For men, youths and boys.”
The instant merchandise was entered at the Port of Salt Lake City on January 23, 2011 and January 25, 2011 and liquidated on December 9, 2011 in a manner consistent with the prior NOA, under subheading 6403.91.60, HTSUS. Red Wing filed its protest on February 10, 2012, claiming that the correct classification for the Boots is under subheading 6403.91.30, HTSUS.
ISSUE:
Whether Red Wing’s Irish Setter-brand, Style #818, Gunflint hunting boots possess welt construction and are classified under subheading 6403.91.30, HTSUS, as welt footwear, or subheading 6403.91.60, HTSUS, as other footwear for men, youth and boys?
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 for entries made on or after December 18, 2004. (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. 2809-12-100073 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Specifically, the question of whether the physical characteristics of the fabric and paperboard lip satisfies the description of welt construction for the purposes of tariff classification is an issue of first impression.
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. 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 not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS subheadings under consideration are the following:
6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather:
Other footwear:
6403.91 Covering the ankle:
Other:
6403.91.30 Welt footwear…
Other:
6403.91.60 For men, youths and boys…
* * * * *
Additional U.S. Note 1(a) to Chapter 64 states, in pertinent part, the following:
For the purposes of this chapter:
The term “welt footwear” means footwear constructed with a welt, which extends around the edge of the tread portion of the sole, and in which the welt and shoe upper are sewed to a lip on the surface of the insole, and the outsole of which is sewed or cemented to the welt.
* * * * *
Inasmuch as the Boots possess a rubber outer sole and an upper composed of leather and textile materials, they are fully described in heading 6403, HTSUS, as footwear with outer soles of rubber. Consequently, there is no dispute that the instant merchandise is classified in heading 6403, HTSUS. As this dispute concerns the proper tariff classification merchandise in the subheadings of the same heading, GRI 6 applies.
The term “welt footwear” is defined in Additional U.S. Note 1(a) to Chapter 64. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions used by CBP Import specialists to classify footwear. The footwear definitions are provided merely as guidelines and, although consulted here, are not to be construed as CBP rulings. With regard to the term “welt,” T.D. 93-88 states, in pertinent part:
“Welt” construction is made with a welt (a strip usually about ¼ inch wide and ? inch thick at its outside edge) which extends around and is stitched or cemented to the top edge of the outer sole. The welt is sewn by a single seam, through the upper, to a lip that extends down from the bottom outer edge of the insole. The lip may be part of the insole or a separate piece that is attached to it.”
T.D. 93-88 defines the term “lip” as follows:
The “lip” (HS) on the bottom surface of the “insole” is either a separate piece of material or a part of the “insole” which has been cut out and bent down at [a] right angle from the rest of the “insole.” The “lip” is usually about ? inch long and 1/16 inch wide. If there is no “lip,” this is not welt footwear for tariff purposes.
T.D. 93-88 describes a “lip,” in pertinent parts, as a piece of material that is “bent down at [a] right angle from the rest of the ‘insole.’” However, we note that the information contained in T.D. 93-88 consists merely of guidelines and should not to be construed as binding CBP rulings. By contrast, the Nomenclature and Additional U.S. Note 1(a) are silent as to the angle at which the lip must attach to the insole and do not support a requirement that the lip of welt footwear extrude at a 90 degree angle. Similarly, no requirement exists that footwear of welt construction possess an upper that turns under towards the insole. Consequently, we find that the basis for the NOA was made in error, and that a finding that the Boots are not of welt construction is incorrect.
Consistent with the definition of “welt footwear” provided by Additional U.S. Note 1(a) to Chapter 64, the instant Boots are articles of footwear constructed with a welt strip that runs along the outer edge of the tread portion of the sole. A lip composed of textile and paperboard is attached to the Boot insole, and the welt and Boot upper are secured together by continuous stitching that passes through the lip. Stitching is also used to connect the welt to the Boot outsole. Inasmuch as the Boots’ construction is described by U.S. Note 1(a) to Chapter 64, the Boots are properly described as “welt footwear” and are provided for eo nomine by subheading 6403.91.30, HTSUS.
HOLDING:
By application of GRI 6 and GRI 1, Red Wing’s Irish Setter-brand, Style #818, Gunflint hunting boots are classified in heading 6403, HTSUS. Specifically, they are classifiable in subheading 6403.91.30, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Covering the ankle: Other: Welt footwear.” The column one, general rate of duty is 5.0% ad valorem. You are instructed to GRANT 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 re-liquidation 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 http://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