April 10, 2009 CBP Bulletin Notice on Classification of the " Firstmate " Shoe

Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify one ruling on the classification of the "Firstmate" shoe. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed modification and revocation, or any party involved with a substantially identical transaction, should advise CBP by May 10, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

"Firstmate" shoe. The subject article is a woman's shoe identified as "Firstmate." This shoe features a closed toe with a functionally stitched upper comprised of rubber, plastic, and textile materials. The predominant materials used to construct the external surface of the upper are rubber and plastic. The shoe also has open side panels with two hook-and-loop style closures over the instep. The heel of the shoe is also constructed with an adjustable hook-and-loop closure strap that is secured through a loop sewn to a rubber panel measuring approximately 2 inches wide x 2 and 1/2 inches high. This allows for a small vented opening on either side of the heel panel. The sole is constructed of a molded rubber and plastic bottom that overlaps the upper with a foxing-like band.

CBP is proposing to issue HQ H005083 in order to modify NY M86737 and classify the "Firstmate" shoe under HTS 6402.99.8060 as a closed heel shoe rather than under HTS 6402.99.30 (2006) as an open heel shoe (currently 6402.99.40).

CBP proposes this change as a correction based largely on Treasury Decision (T.D.) 93-88 which contains certain footwear definitions. The footwear definitions are merely guidelines but state, in pertinent part, that for footwear classification purposes, CBP interprets the "heel" to be the rearmost boney part of the human foot, the top of which is located just below the Achilles tendon. Further, "open" is defined as "in open heeled shoes, all or part of the back of the wearer's heel can be seen." After careful examination of the sample provided, CBP now notes that the heel panel is sufficiently wide (2 inches wide x 2 and 1/2 inches high) to completely cover the rearmost boney part of the average human foot. As such, CBP notes that the subject "Firstmate" shoe was erroneously classified as an "open heel" shoe in NY M86737. CBP now proposes that the subject sample is not an ''open heel'' shoe but is properly classified as a "closed heel" shoe in subheading 6402.99.8060.

CBP now proposed that the "Firstmate" shoe is correctly classified in subheading 6402.99.8060 which provides for "other footwear with outer soles and uppers of rubber or plastics: other footwear: other: other: other: valued over $6.50 but not over $12/pair, for women"

Proposed: 6402.99.8060, $0.90/pair 20%; current: 6402.99.40, 37.5% (formerly 6402.99.30)

April 10, 2009 CBP Bulletin (Vol. 43, No. 15) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/