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HQ 964407





January 14, 2002

CLA-2 RR:CR:TE 964407 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.9065

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. 1001-99-105987, filed December 9, 1999, concerning the classification of women’s shoes.

Dear Madam:

This is a decision on a protest timely filed on December 9, 1999, against your decision in the classification and liquidation of women’s footwear entered and liquidated in 1999.

FACTS:

You classified the footwear in subheading 6404.20.6060, 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 leather or composition leather: Other, For women,” with an applicable duty rate of 37.5 percent ad valorem.

The protestant claims that the goods should be classified in subheading 6403.99.9065, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Other: Other: Other: For other persons: Valued over $2.50/pair, Other: Other: For women: Other," with an applicable duty rate of 10 percent ad valorem.

The two styles of footwear at issue, identified by style names “E-Carmeline" and E-Charissa," are described by the protestant as being constructed with leather uppers. Much of the documentation concerning the entered goods, however, is written in the

Italian language. An invoice dated January 15, 1999, references styles "E. Carmeline" and E-Charissa" and contains several entries of the word "MICRO," often interpreted as an industry abbreviation for footwear composed of "microfiber" textile materials.

On April 6, 1999, a Customs Form (CF) 28 ("Request for Information") was issued, which asked the importer to "PLEASE PROVIDE...SAMPLE PAIRS OF STYLES E. CARMELINE AND E-CHARISSA FROM THE DIRECT SHIPMENT." No response was received. On May 19, 1999, a CF 29 ("Notice of Action") was issued to the importer, which referenced the previous lack of response to the CF 28 and stated that the two styles would be rate advanced unless samples were submitted. The subject protest was filed on December 9, 1999. On January 10, 2000, a second CF 28 was issued to the protestant, requesting that sample pairs of the two styles be submitted to support the protest. No samples have been provided.

ISSUE:

Whether the two styles of women's shoes are classified in subheading 6404.20.6060, HTSUSA, as footwear with uppers of textile materials; or in subheading 6403.99.9065, HTSUSA, as footwear with uppers of leather.

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.

Although no samples of the footwear at issue have been produced, additional documentation has been submitted and an accurate translation of all documents has been obtained. Documents, sketches, and translations collectively indicate that the two styles consist of women's wedge footwear that is black in color. Style E-Charissa, identified by style number 1642, is a slip-on shoe and style E-Carmeline, identified by style number 1645, is held to the foot with a single strap. The shoes are constructed with outer soles of rubber or plastics and with uppers of calf leather. In light of the evidence now available, we conclude that the footwear at issue is properly classified in subheading 6403.99.9065, HTSUSA.

HOLDING:

The women's footwear identified by style names E-Charissa and E-Carmeline, and by style numbers 1642 and 1645, respectively, is classified in subheading 6403.99.9065, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Other: Other: Other: For other persons: Valued over $2.50/pair, Other: Other: For women: Other." The general column one duty rate is 10 percent ad valorem.

The protest should be ALLOWED. 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 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 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,


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