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HQ 956598



September 29, 1994

CLA-2 CO:R:C:M 956598 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15

District Director
U.S. Customs Service
1 E. Bay Street, Room 104
Savannah, GA 31401

RE: Protest 1704-94-100174; Footwear for Formal Wear and Uniformed Wear; Protective Footwear; 6402.99.20

Dear District Director:

The following is our decision regarding Protest 1704-94- 100174 concerning your action in classifying and assessing duty on certain footwear under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of men's footwear (style nos. 10- 600, 10-601, 41-600, and 22-507) designed for formal wear and for use by uniformed food and hotel industries which require their personnel to wear formal footwear. The shoes, which are cut to the ankle, are comprised of rubber soles and plastic laminated leather uppers. Over 90 percent of the external surface area of the shoes' upper is plastic. The protestant's literature states that the outsoles of the shoes feature "free-flo" channeling of water or grease which reduce hydroplaning.

The footwear was entered under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics. The entry was liquidated on April 8, 1994, under subheading 6402.99.20, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease, chemicals, cold, or inclement weather. The protest was timely filed on April 25, 1994.

The subheadings under consideration are as follows:

6402.99.15: [o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [h]aving 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): [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 6 percent ad valorem.

6402.99.20: . . . [o]ther footwear: [o]ther: [o]ther: [f]ootwear 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.

The general, column one rate of duty for goods classifiable under this provision is 37.5 percent ad valorem.

ISSUE:

Whether the footwear is classifiable under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, or under subheading 6402.99.20, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease, chemicals, cold, or inclement weather.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

According to the literature submitted, the shoes feature "free-flo" channeling in the outsole. The free-flo channeling is designed for safety purposes. As the shoes are to be worn by personnel in the food service industry, they are designed to prevent the wearer from slipping in water or grease which are common elements in a kitchen. They are not designed for protective purposes.

The subject merchandise consists of dress shoes which have a polished look to them, the type which would be worn with uniforms or tuxedos. They are designed and manufactured for this purpose. The protestant's literature of the merchandise makes no mention of any protective qualities of the footwear.

Therefore, because there is no evidence of any protective qualities to the subject shoes, classification under subheading 6402.99.20, HTSUS, is precluded. It is our position that they are classifiable under subheading 6402.99.15, HTSUS.

HOLDING:

The footwear is classifiable under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics.

The protest should be GRANTED in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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