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HQ 966589




February 24, 2004

CLA-2 RR:CR:TE 966589 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.1845

Port Director
U.S. Customs and Border Protection
Los Angeles-Long Beach Seaport
Shoreline Building
301 East Ocean Blvd, 14th floor
Long Beach, CA 90802

RE: Decision on Application for Further Review of Protest No. 2704-96-103695: Classification of men’s "chula" sandals; Notes 3 and 4 to Chapter 64; External Surface Area of Upper; High-Tech Sports, USA v. United States, 20 C.I.T. 1046, Slip Op. 96-139 (1996 Ct. Intl. Trade); 958 F. Supp. 637 (1997).

Dear Madam:

This is a decision on a protest timely filed on December 12, 1996, by Grunfeld, Desiderio, Lebowitz & Silverman, LLP, on behalf of their client American Sporting Goods (American), against the September 13, 1996, liquidation of men's footwear ("chula" sandals) in subheading 6404.19.3540, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The footwear was imported into the United States on April 28, 1996, from China under subheading 6402.99.1845, HTSUSA.

The protest and Application for Further Review (AFR) were forwarded by your office on October 21, 1997, in view of a potential conflict between Headquarters Ruling Letter (HQ) 958570, dated February 4, 1997, and Customs position in American Sporting Goods v. United States, Civil Action No 95-05-00627, an action brought on behalf of the same importer. In light of that litigation, our office was precluded from issuing a protest review decision by virtue of section 177.7(b) of the Customs Regulations (19 CFR 177.7(b)). By letter dated April 12, 2000, the protest was returned to you with instructions to suspend it in the Protest Module of ACS in accordance with Customs Directive 099 3550-65 dated August 4, 1993.

Inasmuch as American Sporting Goods v United States, 259 F. Supp. 2d 1302, Slip Op 03-31, dated March 20, 2003, has now been decided, and protestant has, by letter dated June 16, 2003, requested that we process the open protest, a decision on the ARF at this time is warranted.

FACTS:

The footwear at issue is identified by style RM 01820 and is described as a “chula” sandal. The sample is a men’s sports sandal with a rubber outer sole and an upper composed of plastics and textile material. The front portion of the sandal’s upper, which covers the wearer’s instep, is composed of a textile fabric that has been covered with a visible layer of cellular plastics material. The rear part of the upper consists of two side posts and an ankle strap with a hook and loop fabric fastener. The portion of the rear upper that would be in contact with the wearer’s ankle area is composed of two layers of a textile knit fabric between which is a foam material that serves as cushioning. The textile knit fabric and foam materials are lasted under, and attached to, the footbed, and are substantially covered by a textile fabric which itself is covered with a visible layer of cellular plastics material. This external layer of plastics is also lasted under, and attached to, the footbed. A small portion of the textile knit fabric extends past the external layer of plastics and is visible on the sandal’s surface. Removal of the outer layer of plastics exposes a substantially complete upper of textile material. Customs and Border Protection (CBP) laboratory analysis of the external surface area of the upper (ESAU) of the sandal indicates an upper of which over 90 percent of the external area (including accessories and reinforcements) is rubber or plastic.

It is our understanding that style RM 01820 is virtually identical in construction to the sandal invoiced as style RY 1230, which was the subject of HQ 958579, dated February 4, 1997, and HQ 960128, dated February 22, 2000.

The protested merchandise was liquidated under subheading 6404.19.35, HTSUSA, the provision 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,” with a general column one duty rate of 37.5 percent ad valorem.

The protestant claims that the goods should be classified in subheading 6402.99.18, HTSUSA, the provision 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,” with a general column one duty rate of 6 percent ad valorem.

ISSUE:

Whether the men’s sandal is classified under heading 6404, HTSUSA, as footwear with outer soles of rubber or plastics and uppers of textile materials; or under heading 6402, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics.

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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Among other goods, chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. With respect to the material composition of footwear, note 3(a) to chapter states:

3. For the purposes of this chapter:
the terms “rubber” and “plastics” include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color.

Concerning uppers that are composed of two or more materials, note 4(a) to chapter 64 states:

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 EN to chapter 64, indicates that it is the constituent material of the outer sole and of the upper which determines classification in headings 6401 to 6405. The EN states that additional examples of accessories to, or reinforcements for, the uppers are protective or ornamental strips, other ornamentation (e.g., tassels, pompons or braid), laces, and slide fasteners. The EN also suggest that the constituent material of any lining has no effect on classification.

Heading 6402, HTSUSA, covers “Other footwearwith outer soles and uppers of rubber or plastics.” The EN to heading 6402 indicate that footwear remains in the heading even if it is made partly of one and partly of another of the specified materials (e.g., the soles may be of rubber and the uppers of woven fabric that is visibly coated with an external layer of plastics).

Prior to the decision in High-Tech Sports, USA v. United States, 20 C.I.T. 1046, Slip Op. 96-139 (1996 Ct. Intl. Trade); 958 F. Supp. 637, Slip Op. 97-24, (1997 Ct. Intl. Trade), Customs had taken the classification position that the term “accessories and reinforcements” included any material added to an otherwise completed upper material, and that calculations of the external surface area of the upper (ESAU) did not depend upon whether certain pieces were fastened to the sole. (See HQ 088511, issued April 15, 1992.) The CIT in High-Tech concluded, however, that Customs had incorrectly calculated the ESAU, by excluding as “accessories or reinforcements” numerous leather portions overlying substantial nylon textile upper materials. The leather overlays were held by the Court to be “constituent materials of the upper” because they were lasted under and cemented to the soles, and because they contributed strength and durability to the structure of the uppers. See HQ 960019, issued April 10, 1997, and HQ 960627, issued March 13, 1998, in which this office stated it would follow the CIT’s High-Tech rationale.

With respect to sandal style RY 1230, we noted in HQ 958570 and HQ 960128 that, although the textile knit fabric material in the rear part of the upper was sturdy, and was lasted under and attached to the footbed, the external layer of textile fabric visibly covered with plastics was also lasted under and attached to the footbed. Since the external layer of plastics contributed to the structural strength of the sandal, and the plastic material was not similar to the examples of accessories or reinforcements cited in note 4(a) or in the EN to chapter 64, we found that the plastics material comprised over 90 percent of the sandal’s external surface area and constituted the substance of the sandal’s upper. The sandal was classified under heading 6402, HTSUS, specifically in subheading 6402.99.18, HTSUSA.

In the instant case, insofar as sandal style RM 01820, is virtually identical in construction to sandal style RY 1230, and Customs laboratory analysis indicates that the rubber or plastics material comprises over 90 percent of the sandal’s external surface area (including accessories and reinforcements), we find that the plastics material makes up the greatest external surface area of the sandal’s upper. Therefore, the sandal is properly classified under heading 6402, HTSUS, specifically in subheading 6402.99.18, HTSUSA.

HOLDING:

The men’s sport sandal described as a “chula” sandal and identified by style RM 01820, is classified in subheading 6402.99.1845, HTSUSA, the provision for “Other footwear with outer soles and uppers of rubber or plastics: 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.” The general column one duty rate is 6 percent ad valorem.

The protest should be ALLOWED. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 22), 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 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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