CLA-2 OT:RR:CTF:TCM H030423 GC
U.S. Customs and Border Protection
Los Angeles Service Port
301 East Ocean Boulevard, Suite 1400
Long Beach, California 90802
Attn: Port Director
RE: Tariff classification of footwear; Protest Number 2704-07-101098
Dear Port Director:
This letter is in reply to protest, and application for further review, number 2704-07-101098, dated May 2, 2007, filed by Sharretts, Paley, Carter and Blauvet, P.C. on behalf of the importer, Joe Jelly Shoes, against Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of three entries of a certain style of sandal.
FACTS:
This protest pertains to three entries of Joe Jelly Shoes style 40U7ISFA2Q entered on January 26, 2007. It is an open-toe, open-heel thong sandal with outer soles and uppers of rubber/plastics. The upper consists of a single piece of molded plastic in the form of three straps configured in a “Y” shape with a ring center. A single metal rivet is secured through each of the three straps in such a manner as to give the appearance that they are each held together by the ring and the rivets. The upper is attached to the sole by means of three plugs.
On February 15, 2007, CBP issued a request for information (CBP Form 28) concerning the entries subject to the instant protest. Protestant responded on February 23, 2007 by sending a requested sample of the subject merchandise. On March 5, 2007, CBP issued a notice of action (CBP Form 29) informing the protestant of CBP’s classification position and the consequent rate advance pertaining to the subject entries. On April 13, 2007, CBP liquidated the subject merchandise under subheading 6402.99.18, of the Harmonized Tariff Schedule of the United States (HTSUS) (2007), which provides for, in pertinent part: “[o]ther 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… is rubber or plastics…: Other: Other…”. Counsel for protestant asserts that the instant footwear was properly classifiable under subheading 6402.20.00, HTSUS (2007), which provides for: “[o]ther footwear with outer soles and uppers of rubber or plastics: Footwear with upper straps or thongs assembled to the sole by means of plugs (zoris)…”. As such, Joe Jelly Shoes is protesting CBP’s classification and liquidation of the subject merchandise.
ISSUE:
Is the subject footwear classifiable in subheading 6402.20, HTSUS, as footwear with upper straps assembled to the sole by means of plugs, or is it properly classified under subheading 6402.99, HTSUS, as other footwear?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on May 2, 2007, within 180 days of liquidation of the entries, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest 2704-07-101098 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(a), the decision against which the protest was filed “[i]s alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise…”.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The provisions of the 2007 HTSUS, under consideration are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
6402.20.00 Footwear with upper straps or thongs assembled to the sole by means of plugs (zories)…
* * *
Other footwear:
6402.99 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 fixing 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:
6402.99.18 Other…
Note 4 to Chapter 64, HTSUS, which states that, subject to Note 3 to Chapter 64, HTSUS:
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 constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments.
There is no dispute that the subject sandal is classified under heading 6402, HTSUS, as other footwear with uppers and outer soles of rubber or plastics. At issue is the proper six-digit subheading classification.
Classification beyond the four-digit level is governed by GRI 6, which states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
In determining whether the instant sandal meets the terms of subheading 6402.20, HTSUS, which covers “footwear with upper straps or thongs assembled to the sole by means of plugs (zories)”, we note that “zories” were defined in Treasury Decision (T.D.) 93-88, dated October 25, 1993, as footwear that must have the following characteristics:
It is wholly rubber or plastic.
An upper which is a single, molded piece of rubber or plastic as the sole.
A foamed rubber or plastic sole, which is approximately uniform in thickness, i.e., the thickest point is neither more than 3/8 inch thicker than the thinnest point nor more than 35 percent thicker than the thinnest point.
At its thickest point, the sole is less than 2 inches thick.
The sole does not have a separate "insole". A layer of rubber or plastic similar to the other layers of the sole is not a separate insole assuming it is more than 1/32 inch thick.
The molded rubber or plastic upper segment has plugs at the end of each segment and each plug must penetrate all or part of the sole.
The upper either has straps (segments), which form a "V" or "Y" and a thong which goes between the first and second toes or has straps (segments) which form a "X".
A "Zori" may have:
Either a sole of one piece of foamed rubber or plastic or many horizontal layers of different colors jointed together.
A separate, loosely attached ornament on the upper, such as plastic flower.
T.D. 93-88 was published to provide guidelines used by CBP (then the U.S. Customs Service) when classifying footwear of Chapter 64, HTSUS. See also New York Ruling Letter (NY) N040556, dated October 17, 2008.
CBP has consistently held that such items attached to the upper by means of minimal stitching, tacking or a single rivet are loosely attached appurtenances and thus are not considered for classification purposes. See Headquarters Ruling Letter (HQ) 082661, dated October 17, 1988; NY K80009, dated October 29, 2003.
The instant merchandise differs from that of the referenced cases inasmuch as the rivets are not used to attach decorative items to sandals but are themselves the decorative items. We do not find that this difference is consequential with respect to whether the rivets are loosely attached appurtenances to be disregarded for classification purposes. They are attached to uppers that are molded from one piece and their removal would not result in an excessive number of holes that would render the uppers unserviceable. Moreover, being that they are purely decorative in nature, we find that the rivets attached to the subject sandal are not “accessories or reinforcements” described by Note 4(a) to Chapter 64, HTSUS, and should thus not be considered for classification beyond the four-digit level. The instant footwear otherwise meets the above-referenced definition of “zories”. Accordingly, the subject sandal meets the terms of subheading 6402.20, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the instant Joe Jelly Shoes style 40U7ISFA2Q is classified under heading 6402, HTSUS, and specifically provided for under subheading 6402.20.00, HTSUS, which provides for: Other footwear with outer soles and uppers of rubber or plastics: Footwear with upper straps or thongs assembled to the sole by means of plugs (zories)…” The column one, general rate of duty at the time of entry was free.
The protest should be APPROVED. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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 other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division