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HQ 962816




April 12, 2002

CLA-2 RR:CR:TE 962816 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3560

Port Director
U.S. Customs Service c/o Protest and Control Section
1 Penn Plaza, 10th Floor
New York, New York 10119

RE: Decision on Application for Further Review of Protest No. 1001-99-100291, filed January 14, 1999, concerning the classification of women’s shoes.

Dear Madam:

This is a decision on a protest timely filed on January 14, 1999, against your decision in the classification and liquidation of women’s footwear entered in 1997 and liquidated in 1998.

FACTS:

You classified the footwear in subheading 6404.19.3560, HTSUSA, which provides, in pertinent part, 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: 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: Other, Other: For women,” with a general column one duty rate of 37.5 percent ad valorem.

The protestant claims that the goods should be classified in subheading 6402.99.1865, HTSUSA, which provides, in pertinent part, 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...: Other: Other, Other: For women: Other,” with a general column one duty rate of 6 percent ad valorem.

By letter to U.S. Customs dated January 28, 1998, importer Nine West (current protestant) stated, through counsel, that style "P-Kittie" had been misclassified on a previous entry in subheading 6402.99.18, that the shoe in fact had an upper of textile, that a sample of the shoe was enclosed, that the shoe should be classified in subheading 6404.19.35, and that a check in the amount of $7,534.80 (for additional duties owed) would be forwarded to Customs within 30 days. (The duties owed were received but a sample of style "P-Kittie" has never been received by U.S. Customs.) On October 16, 1998, the currently protested entry was liquidated in subheading 6404.19.3560, HTSUSA.

By letter dated March 11, 1999, protestant, through counsel, submits information said to support the current protest. Protestant states that the "P-Kittie" shoe had not been misclassified previously, and that the uppers of the shoe are constructed entirely of plastics. Protestant maintains that a sample of style "P-Kittie" with plastic uppers had been previously submitted. Factory order details applicable to certain order numbers, and "style master" details, are submitted and said to show that the "P-Kittie" style subject to the protested entry possesses uppers of plastics. On these bases, protestant requests reliquidation of the merchandise in subheading 6402.99.18, and a refund of excess duties deposited.

ISSUE:

Whether the uppers of style "P-Kittie" at issue are composed of plastics, so as to be properly classified in subheading 6402.99.1865, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made 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 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

Chapter 64, HTSUSA, covers footwear, gaiters and the like and parts of such articles. Heading 6404, HTSUSA, covers footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials. Heading 6402, HTSUSA, covers other footwear with outer soles and uppers of rubber plastics.

The protestant, through counsel, essentially contends that the style of women's footwear at issue is constructed with uppers of plastics. A sample of style "P-Kittie" constructed with uppers of textile materials is said to have been submitted in January 1998. More than a year later, it is claimed that that sample was, in fact, constructed with uppers of plastics. Based on the fact that Customs received no sample whatsoever, and upon protestant's initial admission that style "P-Kittie" actually possessed uppers of textile materials and had thus been misclassified in subheading 6402.99.18, the documentary evidence later submitted to suggest the shoe had uppers of plastics provides an insufficient basis upon which to allow the protest. We conclude that the footwear at issue is properly classified in subheading 6404.19.3560, HTSUSA, the classification assessed on the protested entry.

HOLDING:

The women's shoe identified by style "P-Kittie" is classified in subheading 6404.19.3560, HTSUSA, which provides, in pertinent part, for “Footwear with outer soles of rubber, plastics...and uppers of textile materials...." 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 in accordance with this decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, 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.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

John Durant, Director

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