CLA-2 OT:RR:CTF:TCM H245574 LWF
Port Director
Service Port of Los Angeles and Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Long Beach, CA 90802
Attn.: Desiree Prudhomme, Import Specialist
RE: Application for Further Review of Protest No. 2704-13-101068; tariff classification of two styles of footwear constructed with rubber or plastic outer soles that are partially covered with an overlay of compressed, non-woven textile fibers
Dear Port Director:
This is reference to the Application for Further Review (“AFR”) of Protest No. 2704-13-101068, timely filed on May 23, 2013, on behalf of Morgan and Milo LLC (“M&M”). The Protest/AFR concerns U.S. Customs and Border Protection’s (CBP) tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two styles of footwear constructed with rubber or plastic outer soles that are partially covered with an overlay of compressed, non-woven textile fibers.
FACTS:
The merchandise at issue consists of two styles of closed-toe, closed-heel casual footwear for girls, identified as style nos. MG2132-“Avril Dot MJ” and MG2364CV-“Sparkle MJ.” Both styles of footwear feature hook and loop strap closures across the vamp and are constructed with a foxing band that runs around the entirety of the shoe. The foxing band is secured around the side of each footwear upper and faces outward from the shoe, perpendicular to the plane of the underfoot. Entry documentation indicates that each pair of footwear is valued at over $6.50, but not more than $12.00.
Samples of the Avril Dot MJ footwear and Sparkle MJ footwear were separately submitted for laboratory analysis by CBP and M&M to determine, pursuant to testing method CBPL Method 64-01, the majority constituent materials of the external surface area of the footwear uppers and outer soles. Findings by CBP’s Laboratory and Scientific Services (LSS) and M&M’s 33rd-party laboratory indicate that the external surface area of the Avril Dot MJ footwear upper is constructed of a majority vegetable-fiber textile material and that the external surface area of the Sparkle MJ footwear upper is constructed of a majority manmade-fiber textile material.
With regard to the constituent materials of the Avril Dot MJ footwear and Sparkle MJ footwear outer soles, laboratory analysis shows that the soles are constructed of rubber or plastics, a portion of which is covered with an overlay of compressed, non-woven textile fibers. See Figs. 1 and 2 (below). The textile fibers that cover the rubber or plastics outer soles can be removed with hard scraping and do not protrude through the rubber or plastics. Analysis by CBP’s LSS demonstrates that when the foxing bands around the Avril Dot MJ footwear and Sparkle MJ footwear are considered as component pieces of the outer soles, the rubber or plastics materials represent the majority surface area of the footwear outer soles. When the foxing bands are excluded from consideration, analysis by M&M’s 3rd-party laboratory shows that the majority of the outer soles’ surface area consists of rubber or plastics materials with an overlay of compressed, non-woven textile fabric.
Fig. 1: Outer sole of the Avril Dot MJ footwear
“Avril Dot MJ footwear,” http://www.mom-babyclothing.com/wp-content/uploads/2014/03/20/1/816-Morgan-Milo-Avril-Mary-Jane-Toddler-Little-Kid-4.jpg
Fig. 2: Outer sole of the Sparkle MJ footwear
“Sparkle MJ,” http://www.zappos.com/morgan-milo-kids-shimmer-mj-glitter-toddler-little-kid-light-blue
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M&M’s Protest/AFR concerns one entry of Avril Dot MJ and Sparkle MJ footwear, entered on January 14, 2013 at the Service Port of Los Angeles and Long Beach Seaport. At the time of entry, M&M classified the Avril Dot MJ footwear under subheading 6404.19.82, HTSUS, and the Sparkle MJ footwear under subheading 6404.19.87, HTSUS. However, upon receipt of CBP LSS’s laboratory analysis of the footwear samples, the Port issued a Notice of Action, dated March 18, 2013, in which it rate advanced both styles of footwear under subheading 6404.19.89, HTSUS. Accordingly, the Port liquidated M&M’s entry of Avril Dot MJ and Sparkle MJ footwear on April 26, 2013, under subheading 6404.19.89, HTSUS, and M&M timely filed the instant Protest/AFR on May 23, 2013.
M&M asserts in its Protest/AFR that CBP LSS erroneously calculated the majority external surface area of the footwear outer soles by including the foxing band in its determination of what materials have the greatest surface area in contact with the ground. M&M suggests that the foxing bands of the Avril Dot MJ and Sparkle MJ footwear should be disregarded in determining the majority external surface area of the footwear outer soles, and accordingly, asserts that the merchandise possess outer soles with textile materials having the greatest surface area in contact with the ground.
ISSUE:
Whether articles of Avril Dot MJ footwear are classified under subheading 6404.19.82, HTSUS, as footwear with outer soles of rubber or plastics, 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 Chapter 64, or under subheading 6404.19.89, HTSUS, as other footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.
Whether articles of Sparkle MJ footwear are classified under subheading 6404.19.87, HTSUS, as footwear with outer souls 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 Chapter 64, or under subheading 6404.19.89, HTSUS, as other footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.
LAW AND ANALYSIS:
As an initial matter, CBP notes that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on tariff classification. The Protest/AFR 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. 2704-13-101068 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 Customs or his designee or by the Customs courts. Specifically, the question of whether CBP should include the foxing bands attached to the Avril Dot MJ and Sparkle MJ footwear in calculating what material of the footwear outer soles has the greatest surface area in contact with the ground 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 provision 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 2013 HTSUS provisions under consideration are the following:
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:
Other:
Valued over $6.50 but not over $12/pair:
6404.19.82 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
6404.19.87 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
6404.19.89 Other
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Note 4(b) to Chapter 64, HTSUS, states, in relevant part:
4. 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.
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Additional U.S. Note 5 to Chapter 64, HTSUS, states, in relevant part:
5. For the purposes of determining the constituent materials 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.
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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 ENs to Chapter 64, HS, state, in relevant part:
GENERAL
[…]
(C) The 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. The constituent material of the outer sole for purposes of classification shall be taken to be the material having the greatest surface area in contact with the ground. In determining the constituent material of the outer sole, no account should be taken of attached accessories or reinforcements which partly cover the sole (see Note 4 (b) to this Chapter). These accessories or reinforcements include spikes, bars, nails, protectors or similar attachments (including a thin layer of textile flocking (e.g., for creating a design) or a detachable textile material, applied to but not embedded in the sole).
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Inasmuch as the Avril Dot MJ footwear and Sparkle MJ footwear are constructed with uppers of textile materials and feature, pursuant to Note 4(b) to Chapter 64, HTSUS, outer soles of rubber or plastics, there is no dispute that the instant merchandise is classifiable in heading 6404, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials. Similarly, there is no dispute that individual pairs of Avril Dot MJ footwear and Sparkle MJ footwear are valued over $6.50, but not more than $12.00. Accordingly, as this dispute concerns the proper tariff classification of merchandise at the 8-digit level among the subheadings of heading 6404, HTSUS, GRI 6 applies.
M&M asserts in its Protest/AFR that articles of Avril Dot MJ footwear and Sparkle MJ footwear are properly classified in subheadings 6404.19.82 and 6404.19.87, HTSUS, respectively, which provide, in relevant part, for footwear “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 [Chapter 64, HTSUS].” Specifically, M&M argues that in calculating what materials of the footwear outer soles have the greatest surface area in contact with the ground, CBP LSS erred by including the surface area of the footwear foxing bands as part of the total surface area of the outer soles. M&M asserts that CBP should disregard the surface area of the foxing bands attached to the Avril Dot MJ footwear and Sparkle MJ footwear in determining, for purposes of tariff classification at the 8-digit subheading level, whether the footwear models feature outer soles with textile materials having the greatest surface area in contact with the ground. As such, the tariff classification of the Avril Dot MJ footwear and Sparkle MJ footwear turns on the proper meaning of the term “outer sole.”
Although the ENs to Chapter 64, HS, describe the term “outer sole” as meaning “that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground,” the term is not defined in the Nomenclature. Where a tariff term is not defined by the HTSUS or the legislative history, the courts have instructed that a term’s correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (“To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.” (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982))). In this case, a good indication of the commercial meaning of the term “outer soles” can be obtained from the Oxford English Dictionary, which defines the term “sole,” in relevant part, as “the bottom of a boot, shoe, etc.; that part of it upon which the wearer treads (freq. exclusive of the heel).” Oxford English Dictionary Online, http://www.oed. com/view/Entry/184121?rskey=0PiqsC&result=1&isAdvanced=false#eid.
Consistent with the EN description and common meaning of “outer sole,” CBP has similarly interpreted the term to describe the bottom, ground-contact surface of an article of footwear. See, e.g., Headquarters Ruling Letter (“HQ”) 967659, dated July 1, 2005 (describing the outer sole as a separately identifiable footwear component that encompasses essentially the entire underfoot area); see also CBP Informed Compliance Publication, What Every Member of the Trade Community Should Know About: Footwear (hereinafter the “Footwear ICP”), April 2012, at 13 (“The outer sole is that part of the footwear (other than an attached heel) which is in contact with the ground when the footwear is in use.”). Moreover, this office notes that in CBP’s Footwear ICP, the term “foxing band” is describe as a distinct component piece that is “separate from the sole and upper, that secures the joint where the upper and sole meet.” Footwear ICP, at 14.
Upon examination of the Avril Dot MJ footwear and Sparkle MJ footwear, this office observes that the outer soles and foxing bands are individual, distinct component pieces of the instant merchandise. The foxing bands are separately applied and attached to the footwear uppers during the manufacturing process, and whereas the outer soles of the Avril Dot MJ and Sparkle MJ encompass the entirety of the underfoot area, the foxing bands are secured around the side of the footwear uppers and face outward, perpendicular to the plane of the underfoot. Consequently, in their condition as imported, the foxing bands are not in contact with the ground when the footwear is in use. As such, this office concludes that the foxing bands of the Avril Dot MJ footwear and Sparkle MJ footwear are not described by common meaning of the term “outer sole” and should be disregarded in determining whether the footwear feature outer soles with textile materials having the greatest surface area in contact with the ground.
In determining what materials of the Avril Dot MJ footwear and Sparkle MJ footwear outer soles have the greatest surface area in contact with the ground, this office observes that the soles of each footwear styles are constructed of rubber or plastics, a portion of which is covered with an overlay of compressed, non-woven textile fibers. Additionally, laboratory analysis conducted in accord with testing method CBPL Method 64-01 demonstrates that the textile-covered portions of the outer soles have the greatest surface areas in contact with the ground. Accordingly, because the two footwear styles feature majority textile-covered outer soles, CBP finds that the Avril Dot MJ footwear and Sparkle MJ footwear are fully described by subheadings 6404.19.82 and 6404.19.87, HTSUS, respectively, as footwear with outer soles of rubber or plastics, valued over $6.50 but not over $12/pair, 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 Chapter 64, HTSUS. Consequently, the Avril Dot MJ footwear is properly classified under subheading 6404.19.82, HTSUS, and the Sparkle MJ footwear is properly classified in subheading 6404.19.87, HTSUS.
HOLDING:
By application of GRIs 6 and 1, the Avril Dot MJ footwear is classified in subheading 6404.19.82, 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 over $6.50 but not over $12/pair: 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 2013 column one, general rate of duty is 7.5% ad valorem.
By application of GRIs 6 and 1, the Sparkle MJ footwear is classified in subheading 6404.19.87, 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 over $6.50 but not over $12/pair: 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.” The 2013 column one, general rate of duty is 12.5% 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