CLA-2 OT:RR:CTF:TCM H084599 TNA
Port Director
Los Angeles/Long Beach Seaport
301 E. Ocean Blvd., Suite 1400 Long Beach, CA 90802
Re: Protest and Application for Further Review No. 2704-09-102512; Summer Beachcomber Sandal
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2704-09-102512, timely filed on September 14, 2009, by counsel on behalf of Philip Simon Development USA, Inc. (“Philip Simon”), regarding the tariff classification of Summer Beachcomber Sandals under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue consists of sandals made of rubber/plastic. The outer sole consists of one black layer and one gray layer of foamed rubber; both are horizontal layers that are joined together. The top of the gray layer contains artwork of various colors, centering around a motif with a heart, skull, and lettering that reads “Love Kills.” The thickness of the outer sole ranges from 9/16 to 11/16 of an inch.
The merchandise’s upper consists of a single plastic “Y”-shaped thong. It attaches to the outer sole by three plastic plugs that penetrate through the entire outer sole. In the middle of the upper is a round metal attachment that measures 3/4 of an inch in diameter and contains a tiger head design. It is attached to the upper by a single metal rivet and can be moved around along the upper.
On October 1, 2008, the merchandise was entered in subheading 6402.99.3165, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: 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: Other, Other: For women.” The merchandise was liquidated as entered on August 14, 2009. Protestant now claims that the merchandise is classified in subheading 6402.20.00, HTSUS, as “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 (zoris).”
ISSUE:
Whether the Summer Beachcomber Sandals are classified as zoris under subheading 6402.20.00, HTSUS, or as other footwear under subheading 6402.99.3165, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (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)).
Further Review of Protest No. 2704-09-102512 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a), (b), and (c) because protestant alleges that the liquidation was inconsistent with prior CBP rulings, involves questions of fact that have not been ruled upon by the Commissioner of Customs or by his designee or by the courts, and, alternatively, that the protest involves matters previously ruled upon by the Commissioner of Customs or by his designee or by the Courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Specifically, Protestant argues that the liquidation in subheading 6402.99.3165, HTSUS, is inconsistent with prior rulings that classify similar merchandise as zoris. See, e.g., NY J87095, dated August 22, 2003; NY K82858, dated February 17, 2004; and NY J88899, dated October 6, 2003. Protestant also argues that the question of whether the sandal’s metal ornament being attached to its upper by a single metal rivet disqualifies the merchandise from classification under subheading 6402.20.00, HTSUS, is a factual question that has not been ruled on by CBP or the courts; and, in the alternative, that the protest raises a number of legal and factual arguments that were not previously considered with respect to the particular type of ornamentation involved.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS subheadings under consideration are the following:
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:
6402.99 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
Legal Note 4 to Chapter 64, HTSUS, reads, in pertinent part:
Subject to note 3 to this chapter:
(a) 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;
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 6402, HTSUS, reads, in pertinent part, the following:
The heading covers, inter alia:…
(e) Thong-type sandals in which the thongs are attached to the sole by plugs which lock into holes in the sole;
In the present case, the subject merchandise consists of sandals with rubber outer soles and an upper of plastic. As such, it is classified in heading 6402, HTSUS, and indeed, there is no dispute at the heading level; at issue is the proper six-digit subheading classification.
In determining whether the instant sandal meets the terms of subheading 6402.20, HTSUS, which covers “[f]ootwear with upper straps or thongs assembled to the sole by means of plugs (zoris)”, we note that “zoris” were defined in Treasury Decision (T.D.) 93-88, dated October 25, 1993, as footwear that must have the following characteristics:
1. It is wholly rubber or plastic.
2. An upper which is a single, molded piece of rubber or plastic as the sole.
3. 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.
4. At its thickest point, the sole is less than 2 inches thick.
5. 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.
6. 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.
7. 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:
1. Either a sole of one piece of foamed rubber or plastic or many horizontal layers of different colors joined together.
2. A separate, loosely attached ornament on the upper, such as plastic flower.
T.D. 93-88 was published to provide guidelines used by CBP (which until March 2003 was known as the U.S. Customs Service) when classifying footwear of Chapter 64, HTSUS. See NY N040556, dated October 17, 2008.
Subheading 6402.20.00, HTSUS, provides for “Other footwear…: Footwear with upper straps or thongs assembled to the sole by means of plugs (zoris).” The subject merchandise is footwear whose “Y”-shaped thong upper is attached to its outer sole exclusively by means of three plugs that extend through the outer sole. As such, it meets the terms of the subheading.
The subject merchandise differs from that of the referenced cases only in that the metal ornament and its attached rivet are not used to attach decorative items to the sandals but are themselves the decorative items. We do not find that this difference is consequential with respect to whether the ornament is a loosely attached appurtenance to be disregarded for classification purposes. The ornament is attached to an upper that is molded from one piece and its removal would not result in an excessive number of holes that would render the upper unserviceable. Moreover, being that the metal ornaments are purely decorative in nature, we find that they are not “accessories or reinforcements” as described by Note 4(a) to Chapter 64, HTSUS. We find that the subject merchandise meets the above-referenced definition of “zoris”.
CBP has consistently held that items similar to the subject ornament, attached to the upper by means of minimal stitching, tacking or a single rivet, are loosely attached appurtenances and are not considered part of the upper for classification purposes. See, e.g., HQ 082661, dated October 17, 1988; and NY K80009, dated October 29, 2003. Accordingly, the Summer Beachcomber Sandal is classified in subheading 6402.20, HTSUS, as “… Footwear with upper straps or thongs assembled to the sole by means of plugs (zoris).”
HOLDING:
By application of GRI 1, the Summer Beachcomber Sandals are classified in heading 6402, HTSUS, specifically in subheading 6402.20.0000, 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 (zoris).” The general column one rate of duty is free.
You are instructed to ALLOW the protest.
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 of 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