CLA-2:OT:RR:CTF:TCM H051480 JRB
Tariff No.: 6402.99.31
Port Director
Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
RE: Application for further review of protest number 2704-08-101760; Classification of Zoris
Dear Port Director:
This letter is in reply to your forwarding of protest and application for further review number 2704-08-101760, dated June 17, 2008, filed by counsel on behalf of its client, Avon Products (protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification and subsequent liquidation of footwear under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
This protest involves the classification and liquidation of a green sandal that is made of a 100% polyvinylchloride (PVC) upper in the shape of a “Y” and a 100% ethylene vinyl acetate (EVA) outer sole. The upper has two different types of beads attached to it; one is a green bugle bead about 3/8 of an inch long and the other is a round metallic bead approximately 1/8 of an inch long. The beads are tightly stitched to the upper through the metallic beads. The green bugle bead is threaded through the center with alternating metallic beads and green beads. The beads cover most of the plastic upper.
The subject merchandise entered the United States through your port on various dates between December 16, 2007, and December 30, 2007, under subheading 6402.20.00, HTSUS. On January 23, 2008, your port issued a Notice of Action (CBP Form 29) indicating that the merchandise should be reclassified in subheading 6402.99.31. The entries were then liquidated on February 15, 2008, pursuant to the Notice of Action.
ISSUE:
Whether the footwear is classified in subheading 6402.20.00, HTSUS, as zoris, or in subheading 6402.99.31, HTSUS, as other footwear?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable as a classification decision pursuant to 19 U.S.C. §1514(a)(2). The protest was timely filed on June 17, 2008, within 180 days of the liquidation of the three entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. §1514(c)(3) (2006)). In addition, Further Review of Protest 2704-08-101760 was properly accorded because the protestant is asserting new legal arguments which have not been ruled upon by CBP or the courts. See 19 C.F.R. §174.24(b). Specifically, the protestant argues that Note 4 to Chapter 64, HTSUS, provides that the presence of ornamentation on the uppers should not affect the classification of the subject footwear.
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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, and any related subheading notes, and mutatis mutandis to the GRIs 1 through 5.
The 2007 HTSUS provisions under consideration in this case 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 (zoris)…
Other footwear:
Other:
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:
6402.99.31 Other…
Note 4 to Chapter 64, HTSUS, provides in relevant part:
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;
There is no dispute that the subject merchandise is classified in heading 6402, HTSUS, as “[o]ther footwear with outer soles of rubber or plastic”. The only issue is the classification of the footwear at the subheading level. Thus, we will apply GRIs 1 through 5 in accordance with GRI 6.
In Headquarters Ruling Letter (HQ) 965980, dated January 7, 2003, CBP classified a similar sandal in subheading 6402.99.18, HTSUS. In that ruling, issued to the protestant, we addressed many of the same arguments presented in this AFR. Thus, we are adopting the analysis of HQ 965980 since it is binding on both the protestant and CBP pursuant to 19 U.S.C. §1625.
In HQ 965980, we noted that the HTSUS does not define the term “zori”. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). Relying on the common meaning of the term “zori”, as set forth in Treasury Decision (T.D.) 93-88, dated October 25, 1993, CBP has consistenly stated that a “zori” must have all of the following characteristics:
(1) it is wholly of rubber or plastic;
(2) a single molded piece of rubber or plastic upper;
(3) at its thickest point, the upper is no more thant 3/8 inch thicker than the thinnest point and no more than 35 percent thicker than the thinnest point;
(4) a sole that is no more than 2 inches thick at its thickest point;
(5) the sole does not have a separate “insole”, however, a layer of rubber or plastic that is no more than 1/32 inch thick;
(6) a molded upper or plastic upper segment with plugs at the end of each segment that must penetrate all or part of the sole;
(7) an upper that forms a “V” or a “Y” and a thong that goes between the first and second toes or has straps which form an “X”.
A zori can also have a sole of one piece of foamed rubber or plastic or many horizontal layers of different colors joined together. It may also have a separate, loosely attached ornament on the upper, such as a plastic flower. See New York Ruling Letter (NY) N040556, dated October 17, 2008 and NY N016708, dated September 21, 2007. In this case, we find that the subject merchandise is not a zori because it has the addition of several decorative beads that are sewn to the upper.
The protestant argues in this case that Chapter 64, Note 4(a), HTSUS, precludes CBP from considering the decorative beads that are attached to the plastic upper of the sandal. However, that note is meant to preclude ornamentation from the calculation of the external surface area of the upper (ESAU). This note does not impact the meaning of the term “zori”. In this case, there is no issue regarding the ESAU of the footwear, the only issue is whether or not the product is described by the term “zori”. Since this product is not a zori, as explained above, Note 4(a) is inapplicable.
The protestant also asserts that since this provision is an eo nomine provision, it includes all types of the named product. We agree with the protestant that this is an eo nomine provision, however, as noted above, this product does not meet the definition of a zori since it has several plastic beads that are attached to the upper.
Lastly, the protestant contends that NY G83186, dated October 26, 2000, classified a similar item as a zori. However, the ruling letter does not provide sufficient facts necessary for us to make a determination on whether the classification analysis for that ruling and the subject merchandise are similar. More specifically, we cannot tell from the ruling whether or not the flowers would be considered loosely attached appurtenances. In addition, because of the events of September 11, 2001 we are unable to review the file for this ruling. Therefore, we cannot determine if the ruling is controlling in this instance.
Since no other subheading within heading 6402, HTSUS, describes the subject merchandise, it falls to the basket subheading and is most specifically described by subheading 6402.99.31, HTSUS. This classification is consistent with NY L83628, dated April 14, 2005 and NY G82901, dated November 13, 2000.
HOLDING:
By application of GRIs 1 and 6, the subject merchandise is classified in subheading 6402.99.31, HTSUS, which provides for “[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [o]ther: [h]aving 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): [o]ther: [o]ther…” The 2007 column one, general rate of duty, is 6% ad valorem.
You are instructed to DENY the protest in full. 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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 other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division