OT:RR:CTF:FTM HQ H327157 TSM
Center Director
CEE – Apparel, Footwear and Textiles
U.S. Customs & Border Protection
797 S. Zaragosa Rd.
El Paso, TX 79907
Attn: Suzana Mikulka, Supervisory Import Specialist
Re: Protest and Application for Further Review No. 4601-21-125230; Tariff classification of certain footwear
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4601-21-125230, timely filed on February 2, 2021, on behalf of Gianni Versace SpA (“Protestant”), regarding the tariff classification of footwear style DSU7462 under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
Footwear style DSU7462 is described as the “Versace Chain Reaction 2 Sneaker.” It is a below-the-ankle, lace-up sneaker, featuring uppers made of a combination of rubber/plastics, leather (suede), and textile mesh, decorated with the brand name embroidered under the ankle, and rubber/plastic dots (Braille lettering) on the lateral side of the toes. The outer soles consist of rubber/plastics molded into the signature thick chain-link design. The outer soles are extremely heavy and rigid, and feature no underfoot cushioning.
Protestant describes style DSU7462 as casual fashion footwear featuring some athletic styling, but also featuring outer soles that are too thick, bulky, heavy, and inflexible, and therefore unfit for any athletic purpose, such as fast footwork or running. In addition, Protestant also provides the following description of style DSU7462:
The Versace Chain Reaction 2 was a bridge between the Italian fashion label’s haute heritage and the street-influenced zeitgeist of the modern era. A play on texture, this edition combines honeycomb mesh and nubuck with a croc-embossed panel and dipped laces. House emblems are revamped through the placement of braille ‘love’ lettering on toe, color-pop logo embroidery and Greek key detailing on the vamp. The signature chain-linked rubber sole is attached underfoot.
The CBP laboratory report number NY20210390, dated May 21, 2021, determined the following concerning footwear style DSU7462: (1) style DSU7462 has a rubber/plastic outer sole; (2) the external surface area of the upper excluding reinforcements and/or accessories is predominately rubber/plastic material; and (3) the external surface area of the upper including reinforcements and/or accessories is as follows: rubber/plastic: 47.7 percent; leather: 31.5 percent; and textile: 20.8 percent.
The subject merchandise covers five entries, entered between September 11, 2019 and September 16, 2019, and liquidated on August 7, 2020, under subheading 6404.11.90, 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: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.” The 2019 column one general rate of duty is 20% ad valorem. The protest/AFR was filed alleging classification under subheading 6404.19.90, 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 $12/pair.” The 2019 column one general rate of duty is 9% ad valorem. The Center denied the protest and AFR, but the denial was set aside on September 2, 2022, under the authority of 19 U.S.C. § 1515(c). Subsequently, the request for AFR was granted and the protest package was forwarded to this office for consideration.
ISSUE:
What is the tariff classification of style DSU7462?
LAW AND ANALYSIS:
Initially, we note that the matter 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 first 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. 4601-21-125230 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”) N231842, dated September 21, 2012.
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined in accordance with the General Rules of Interpretation (“GRI”). 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. 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 2019 HTSUS provisions under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics
* * *
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials
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Note 4 to Chapter 64 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.
* * *
Subheading Note 1 to Chapter 64 provides:
For the purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and 6404.11, the expression “sports footwear” applies only to:
Footwear which is designed for a sporting activity and has, or has provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like;
Skating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and cycling shoes.
* * *
Additional U.S. Note 2 to Chapter 64 provides:
For the purposes of this chapter, the term “tennis shoes, basketball shoes, gym shoes, training shoes and the like” covers athletic footwear other than sports footwear (as defined in subheading note 1 above), whether or not principally used for such athletic games or purposes.
* * *
“Footwear Definitions” T.D. 93-88, dated October 25, 1993, provides in relevant part:
“Athletic” footwear (sports footwear included in this context) includes:
Shoes usable only in the serious pursuit of a particular sport, which have or have provision for attachment of spikes, cleats, clips or the like.
Ski, wrestling & boxing boots; cycling shoes; and skating boots w/o skates attached.
Tennis shoes, basketball shoes, gym shoes (sneakers), training shoes (joggers) and the like whether or not principally used for such games or purposes.
It does not include:
Shoes that resemble sport shoes but clearly could not be used at all in that sporting activity. Examples include sneakers with a sequined or extensively embroidered uppers.
A “slip-on”, except gymnastic slippers.
Skate boots with ice or roller skates attached.
* * *
Footwear style DSU7462 was liquidated under subheading 6404.11.90, 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: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.” Protestant argues that footwear style DSU7462 is classified under subheading 6404.19.90, 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 $12/pair.” Upon review, we find that footwear style DSU7462 is not classified in heading 6404, HTSUS, which provides in relevant part for footwear with uppers of textile materials. In this regard, Note 4 to Chapter 64 provides that “[t]he 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.” Consistent with the CBP laboratory report discussed above, the external surface area of the upper of footwear style DSU7462, excluding reinforcements or accessories, is predominantly rubber/plastic, and the external surface area of the upper including reinforcements and accessories is 47.7 percent rubber/plastic, 31.5 percent leather, and 20.8 percent textile. Therefore, we conclude that the upper of footwear style DSU7462 is rubber/plastic, and not textile, within the meaning of Note 4 to Chapter 64. Consequently, style DSU7462 is not classified in heading 6404, HTSUS.
Upon additional review, we find that footwear style DSU7462 is classified in heading 6402, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics.” As discussed above, pursuant to Note 4 to Chapter 64, footwear style DSU7462 features a rubber/plastic upper. With regard to the outer sole, the above-discussed CBP laboratory report also provides that style DSU7462 has a rubber/plastic outer sole. Consequently, as footwear with a rubber/plastic outer sole and upper, style DSU7462 is classified in heading 6402, HTSUS.
We next consider whether footwear style is “sports footwear,” provided for in subheading 6402.19, HTSUS. As discussed above, the Protestant argues that style DSU7462 is not “sports footwear,” because it features outer soles that are too thick, bulky, heavy, and inflexible, and is unfit for any athletic purpose, such as fast footwork or running. We note that, consistent with Subheading Note 1 to Chapter 64, “sports footwear” is footwear designed for a sporting activity, which has spikes, sprigs, cleats, stops, clips, bars or the like, as well as ski footwear, wrestling boots, boxing boots, or cycling shoes. Upon review, we find that footwear style DSU7462 does not have any of the characteristics of sports footwear and is therefore not classified as such. Moreover, it should be noted that footwear style DSU7462 is also not “athletic footwear,” as defined in Additional U.S. Note 2 to Chapter 64. This is because, despite a general athletic appearance and other construction features associated with athletic footwear, such as a lace closure, this footwear style features outer soles that are so thick, heavy, and rigid, that it cannot be used for any athletic purpose or sporting activity. This finding is also consistent with T.D. 93-88, referenced above, which provides in relevant part that “athletic” footwear does not include shoes that resemble sport shoes but clearly could not be used at all in sporting activity. Accordingly, we conclude that style DSU7462 is not “sports footwear” of heading 6402.19, HTSUS.
As discussed above, based on the laboratory analysis of footwear style DSU7462 and consistent with Note 4 to Chapter 64, for tariff classification purposes the constituent material having the greatest external surface area of both the outer sole and the upper is rubber/plastics. As such, footwear style DSU7462 meets the terms of heading 6402, HTSUS, and specifically 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.”
HOLDING:
By application of GRI 1 and 6, footwear style DSU7462 is classified under heading 6402, HTSUS, and specifically 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.” The 2019 column one general rate of duty is 20% ad valorem.
Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to DENY the protest in full.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division