HQ H265065
CLA-2 OT:RR:CTF:TCM HQ H265065 TSM
Port Director
U.S. Customs and Border Protection
2810 B West Fort Street
Suite #123
Detroit, MI 48216
Attn: Marcia Marshall, Supervisory Import Specialist
Re: Protest and Application for Further Review No. 3801-14-100604; Classification of various styles of women’s footwear.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 3801-14-100604, timely filed on December 9, 2014, on behalf of Aldo US Inc. (“Protestant”) regarding the tariff classification of various styles of women’s footwear under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of seven styles of women’s footwear. The styles are Briradia 30208857, Ocoawen 31217405-28, Piscogne 30585484-28, Motoko 94827550-70, Kivitoo 30565491-28, Kivitoo 30565491-48, and Kivitoo 30565491-96.
The Motoko 94827550-70 style features a woman’s peep-toe pump which has a closed heel and an open toe, is of the slip-on type, does not have a foxing-like band and does not cover the ankle. The upper consists of plastic-coated textile material with one hundred seven decorative metal rivets. The outer sole consists of rubber/plastic that has been partially covered on the ground-contact surface with an overlay of applied textile flock.
The Piscogne 30585484-28 style features a woman’s thong sandal which has an open toe and heel, is of the slip-on type, does not have a foxing-like band, and does not cover the ankle. The upper consists predominantly of plastic-coated textile material with an “O”- shaped metal piece connecting the main upper to the lateral rear instep strap. The outer sole consists of rubber/plastic that has been partially covered on the ground-contact surface with an overlay of applied textile flock.
The Briradia 30208857 style features a woman’s platform-heel wedge sandal with an upper consisting predominantly of plastic-coated textile material with five large metal chain link ornaments, a metal zipper-pull, and a metal/textile zipper. The outer sole consists of rubber/plastic that has been partially covered on the ground contact surface with an overlay of partially embedded woven textile fabric.
The Ocoawen 31217405-28 style features a woman’s open toe and heel platform wedge thong sandal of the slip-on type, which does not have a foxing-like band and does not cover the ankle. The upper consists predominantly of plastic-coated textile material with a small circular metal ornament. The metal ornament is attached securely to the upper via two metal rivets. The outer sole consists of rubber/plastic that has been partially covered on the ground-contact surface with an overlay of applied textile flock.
The Kivitoo 30565491-28 style features a woman’s thong sandal which has an open toe and heel, a buckle closure, does not have a foxing-like band, and does not cover the ankle. The upper consists predominantly of plastic-coated textile material with five decorative metal rings, a metal buckle, and a metal strap keeper. The outer sole consists of rubber/plastic that has been partially covered on the ground-contact surface with an overlay textile flock.
The Kivitoo 30565491-48 style features a woman’s open toe and heel sandal. The upper consists of the rubber/plastic material and the outer sole consists of rubber/plastic with some areas covered in textile flocking on the outermost surface.
The Kivitoo 30565491-96 style features a woman’s open toe and heel sandal. The upper consists of the rubber/plastic material and the outer sole consists of rubber/plastic with some areas covered in textile flocking on the outermost surface.
All seven footwear styles were entered on February 28, 2014 under subheading 6402.99.4100, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: 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.”
On August 15, 2014, the subject merchandise was liquidated under subheading 6402.99.4960, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other: For women.”
Protestant claims that the Piscogne, Motoko and Ocoawen styles are classified in subheading 6402.99.3165, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather): Other: Other: Other: For women: Other.”
Protestant further claims that the Kivitoo styles are classified in subheading 6402.99.4100, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: 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.”
Protestant also claims that the Briradia style is classified in subheading 6402.91.4050, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of nonmolded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. For women: Other.”
CBP forwarded all seven footwear styles to the CBP laboratory for analysis. Protestant also tested the footwear and submitted its own laboratory reports for all footwear styles at issue.
ISSUE:
What is the correct classification of the footwear under the HTSUS?
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 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. 3801-14-100604 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 is inconsistent with New York Ruling Letter (NY) N251339, dated April 7, 2014. Protestant further alleges that the decision against which the protest was filed is inconsistent with another port’s decision with respect to the same or substantially similar merchandise.
Merchandise imported into the United States is classified under 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.
The 2014 HTSUS provisions under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear:
6402.91 Covering the ankle:
* * *
Other:
6402.91.40 Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of nonmolded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather.
For women:
6402.91.4050 Other
* * *
6402.99 Other:
Other:
Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather):
Other:
6402.99.31 Other
Other:
For women:
6402.99.3165 Other
* * *
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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
6402.99.4100 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
6402.99.49 Other
Other:
6402.99.4960 For women
* * *
Note 4 to Chapter 64, HTSUS, provides as follows:
Subject to note 3 to this chapter:
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;
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.
Additional U.S. Note 5 to Chapter 64, HTSUS, provides 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.
Protestant argues that the three Kivitoo footwear styles at issue are classified in subheading 6402.99.4100, HTSUS. Protestant also argues that the Ocoawen footwear style is classified in subheading 6402.99.3165, HTSUS. Protestant further argues that the Briradia footwear style is classified in subheading 6402.91.4000, HTSUS. CBP forwarded these footwear styles to the laboratory for testing. CBP laboratory findings have confirmed that the three Kivitoo footwear styles are classified in subheading 6402.99.4100, HTSUS; the Ocoawen footwear style is classified in subheading 6402.99.3165, HTSUS; and the Briradia footwear style is classified in subheading 6402.91.4050, HTSUS. Accordingly, we agree with the Protestant regarding the classification of these footwear styles.
Next, we will address the remaining styles at issue: Piscogne and Motoko. In its submission, Protestant argued that footwear styles Piscogne and Motoko are classified in subheading 6402.99.3165, which covers footwear having uppers of which over 90 percent of the external surface area is rubber or plastics. Although Protestant provided a laboratory report from an independent laboratory stating that the external surface area of the upper of the Piscogne footwear style is 90.6% rubber/plastic and the external surface area of the upper of the Motoko footwear style is 90.9% rubber/plastic, upon examination of the samples of the Piscogne and Motoko footwear styles, the CBP laboratory found their external surface areas of the uppers to be 89.9% and 90% rubber/plastic, respectively.
Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. See Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” See Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the Customs’ laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. In Alcoa, the importer was able to overcome the presumption of correctness afforded Customs by clearly establishing that the samples tested by the importer were taken from the shipment under question as it arrived in the U.S. Moreover, the samples were analyzed by the importer’s own chemists as well as two independent labs using the published Customs Lab Method, which was considered reliable by both sides. In this case, although the Protestant has provided results contrary to those of the CBP laboratory, the Protestant has failed to establish a prima facie case that the methods used by the CBP laboratory are in error or that the results are erroneous. In cases such as this, where an outside report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and, takes precedence over the outside report. See HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). “Customs cannot rely on outside reports, which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, generally Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported in to the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.” See HQ 957282. See also HQ 958346, dated February 6, 1996. In this case, the Protestant, unlike the plaintiff in Alcoa, has provided no evidence that the samples from the entry at issue were tested. The Protestant has also failed to demonstrate that the methods used by the CBP laboratory were in error, or that the results were erroneous. Accordingly, the CBP laboratory report prevails.
Based upon the CBP laboratory findings, we conclude that the Piscogne style footwear is classified in subheading 6402.99.4100, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics: … Footwear with open toes and open heels: Having outer soles with textile materials having the greatest surface area in contact with the ground. ... ” See NY N260684, dated January 26, 2015. We further find that the Motoko style footwear is also classified in subheading 6402.99.4100, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics: … Footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, … 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: Having outer soles with textile materials having the greatest surface area in contact with the ground. ... ” See NY N263940, dated May 1, 2015.
Finally, Protestant argues that CBP’s decision to liquidate the subject merchandise under subheading 6402.99.4960, HTSUS, is inconsistent with NY N251339, dated April 14, 2014. While we agree that classification under subheading 6402.99.4960 is incorrect, our finding is not based on this ruling, which classified completely different footwear, described as men’s house slippers with textile material uppers that did not cover the ankle and also featured a foxing-like band, under subheading 6404.19.7715, HTSUS.
HOLDING:
By application of GRIs 1 and 6, we find that the footwear at issue is classified in heading 6402, HTSUS. Specifically, it is classified as follows:
The Piscogne 30585484-28, Motoko 94827550-70, Kivitoo 30565491-28, Kivitoo 30565491-48 and Kivitoo 30565491-96 styles are classified in subheading 6402.99.4100, HTSUS, which provides as “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: 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 2014 column one, general rate of duty is 12.5% ad valorem.
The Ocoawen 31217405-28 style is classified in subheading 6402.99.3165, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather): Other: Other: Other: For women: Other.” The 2014 column one, general rate of duty is 6% ad valorem.
The Briradia 30208857 style is classified in subheading 6402.91.4050, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of nonmolded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather: For women: Other.” The 2014 column one, general rate of duty is 6% ad valorem.
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.
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