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HQ 961987




November 15, 1999

CLA-2 RR:CR:TE 961987 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.3080

Port Director, Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Protest No. 1001-98-101005; Classification of Girls’ Sandals; Heading 6402, HTSUSA; Not Other Festive Articles; Heading 9505, HTSUSA; Not Toy Footwear; Heading 9503, HTSUSA

Dear Sir:

This is in response to the Application for Further Review of Protest Number 1001-98-101005, filed by Action Customs Expediters on May 5, 1998, on behalf of the importer, Peter Alan, Inc. (“Protestant”), contesting the classification of certain girls’ sandals under subheading 6402.99.3080 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which you forwarded to our office for review on June 22, 1998. A sample of the pair of sandals was forwarded with the Application for Further Review.

FACTS:

The merchandise under protest is a pair of girls’ slip-on, open heel, open toe sandals, designated as style #7319. Each sandal has an external surface area of the upper comprised of 61.7 percent rubber/plastic, 35.9 percent textile, and 2.4 percent metal. The upper is highly decorative in nature featuring gold-colored straps, gold and multi-colored ribbon, beads, and sequins. The sandals have a separate insole. The small heel, which is approximately 1-1/4 inches in height, is molded of a rigid plastic and has a small no-slip attachment on the bottom of the heel. The plastic heel extends approximately to the middle of the outer sole. The remaining portion of the outer sole is comprised of a flexible rubber outer sole which is glued to the insole. The flexible rubber outer sole also features tread for no-slip traction. The size of the shoe is indicated on the rubber outer sole. The shoes have a right and left designation and are shaped to fit a child’s feet.

Protestant entered a shipment of the sandals on June 18, 1997, under subheading 9505.90.6090, HTSUSA, the provision for other festive or entertainment articles, with a free rate of duty. On November 7, 1997, Customs issued a Notice of Action in which Customs reclassified the sandals as footwear under subheading 6402.99.3080, HTSUSA, with a rate of duty of 37.5 percent. Accordingly, the shipment of sandals was liquidated on April 3, 1998. The Protestant filed its protest on May 5, 1998, and contends that the sandals cannot be considered footwear because they are made by a toy factory and are not suitable for use as real shoes. The Protestant submits that the sandals are bought, packaged and sold strictly as a costume dress-up item. Drawing attention to the retail packaging, the Protestant points out that it calls the sandals “dress up sandals”. Protestant also asserts that the sandals are sold exclusively to party stores, costume stores and Halloween vendors. On June 8, 1998, the Protestant filed an amendment to the protest additionally alleging that the sandals are festive articles “by nature of their manufacturing, marketing and use.” The Port took the position that the sandals were footwear because of the substantial construction and the fact that the sandals did not “exclusively fit into the definition for festive articles.”

ISSUE:

Whether the sandals are classifiable in heading 6402, HTSUSA, as footwear or in heading 9505, HTSUSA, as festive articles or in heading 9503, HTSUSA, as other toys?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The Port asserts that heading 6402, HTSUSA, which covers footwear, is the correct classification for the subject sandals. It appears that the importer originally argued that heading 9503, HTSUSA, which covers other toys, was the correct classification. The importer now asserts that heading 9505, HTSUSA, which covers, among other things, festive articles, is the correct classification.

Heading 9505, HTSUSA, provides for, inter alia, festive or other entertainment articles. The EN to heading 9505, HTSUSA, indicate that festive or entertainment articles of the heading include articles of fancy dress such as masks, false ears and noses, wigs, false beards and moustaches, and paper hats. However, the EN to heading 9505, HTSUSA, also state that festive or other entertainment articles are generally made of non-durable materials. The subject sandals are made of durable materials and are of substantial construction. Accordingly, the subject sandals do not meet the description of festive articles of heading 9505, HTSUSA.

Furthermore, in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUSA, specifically, the class or kind of merchandise termed "festive articles," and provided new guidelines for classification of such articles in the heading. In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

3. Is associated with or used on a particular holiday.

The Protestant has failed to establish how the subject sandals function primarily as a decoration or functional item used in celebration of and for entertainment on a holiday and how the sandals are associated with or used on a particular holiday. Although the Protestant asserts that the sandals are sold, among other places, to costume stores and Halloween vendors, we do not find this sufficient to establish that the sandals are festive articles. No particular type of Halloween costume with which the subject sandals would be used has been identified. Additionally, the fact that the sandals are sold as “costume dress up” items or labeled “dress up sandals” does not mandate classification as festive articles. Accordingly, we find that the subject sandals are not properly classifiable as festive articles under heading 9505, HTSUSA.

Heading 6402, HTSUSA, provides for footwear with outer soles and uppers of rubber or plastics. Chapter note (1)(f) to chapter 64, HTSUSA, specifically excludes “toy footwear” from chapter 64. Heading 9503, HTSUSA, provides for, among other things, toys. The EN to heading 9503, HTSUSA, indicate that the heading covers toys intended essentially for the amusement of children or adults. Toy footwear or “dress up shoes” are classified under heading 9503, HTSUSA. Thus, we must determine whether the subject sandals are “toy footwear” or “traditional footwear”.

In attempting to determine whether a shoe is toy footwear or traditional footwear, size, design and construction are relevant considerations. Numerous Customs rulings have stated that shoes are classifiable as toy shoes under heading 9503, HTSUSA, if they are: 1) not available in assorted sizes; 2) unsuitable for any form of practical use; and 3) made of flimsy construction. See New York Ruling Letter (NY) 860447, dated March 8, 1991; NY 875698, dated July 23, 1992; NY 807270, dated March 29, 1995; NY 811637, dated July 12, 1995; NY 812545, dated August 9, 1995, NY 818626, dated February 28, 1996, NY B86522, dated August 26, 1997, and NY C88824, dated June 30, 1998. For example, in NY 807270 and 818626 (cited above), the toy shoes at issue were only available in one size which fit girls from 3 to 6 years in age. In NY C88824 (cited above), Customs classified toy shoes under heading 9503, HTSUSA, where the entire sole and heel were molded of rigid plastic and did not allow for the flexibility required in the commercial world of standard footwear. Thus it appears that shoes which do not possess the qualities of traditional footwear will be classified as toy shoes under heading 9503, HTSUSA.

The subject sandals possess the qualities of traditional footwear. The sandals are no different from any other footwear which is bought and sold as sandals. The sandals are well constructed for multiple use and can be worn outside the house as regular shoes. The construction of the sandal is typical of footwear, featuring a separate insole and a durable upper and outer sole. We note that the construction of the outer sole and heel allows for flexibility and comfort. Also like regular footwear, the sandals have a right and left designation and are shaped to fit a small child’s feet. The outer soles display size indicators. The sandals are available in sizes “9" or “S”, “11" or “M” and “1" or “L”. The sandals are of a class or kind of functional type footwear. They are durable and are recognized as normal sandals. The Protestant has failed to establish how the subject sandals are not suitable for use as real shoes. We find the subject sandals are more akin to the substantially made children’s dress up slippers in NY 861151, dated March 27, 1991, which were classified as traditional footwear under heading 6405, HTSUSA. The dress up slippers in NY 861151 were constructed of plush material and had a soft felt inner liner. Additionally, in HQ 087336, dated August 28, 1990, Customs classified children’s slippers designed as a cartoon automobile with flashing headlights and a three dimensional Mickey Mouse figure behind the steering wheel as traditional footwear. Customs stated that the slippers were not chiefly used for the amusement of children or adults and that any amusement derived from the Mickey Mouse configuration was incidental to the product’s primary function, which was to serve as footwear. Customs noted that the slippers would be usable without the figure of Mickey Mouse and the headlights and stated that the merchandise was functional slippers with a toy design feature. Similarly, the subject sandals are not chiefly used for the amusement of children. The subject sandals’ primary function is to serve as footwear. Any amusement derived from the sandals’ decorative features is incidental to their primary function as footwear. Even if the fancy decorations were removed, the sandals would still function as footwear. Accordingly, we find that the subject sandals are traditional footwear properly classifiable under heading 6402, HTSUSA.

HOLDING:

The sandals are properly classifiable under subheading 6402.99.3080, HTSUSA, the provision 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 6402.99.20 and 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; Other: For other persons.” The general column one duty rate is 37.5 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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