CLA-2 OT:RR:CTF:TCM H195838 HvB
Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA, 90802
Attn.: Barbara Weeks
RE: Classification of Women’s Footwear; Internal Advice 11/034
Dear Port Director:
This is in response to the memorandum dated October 3, 2011, from your office, forwarding with comments the Request for Internal Advice, dated August 29, 2011, initiated by counsel on behalf of Skiva International, Inc. (“Skiva”), regarding the tariff classification of a woman’s sandal under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise is a woman’s sandal identified as the “Leslie Sandal” made from plastic and rubber materials. The sole of the sample is comprised of foamed rubber or plastic and the upper consists of a single piece of molded rubber or plastic with three plugs, each of which pierce the sole. The sole is uniformly thick and is encircled by a decorative molded plastic strip. At its thickest point, the sole is approximately less than one inch thick. The upper strap extends from the thong initially as a narrow “V” and wraps around the ankle, ultimately forming a narrow “O” shape. This “O” upper is anchored by two triangular pieces of rubber that are placed at either side of the ankle. The upper strap features a large fake “gem” which is loosely attached to the strap by a thread and three tiny fake “gems” that are glued onto the strap.
Skiva originally entered the subject merchandise as “ladies footwear” on June 13, 2011, in subheading 6402.20.0000, which provides for: “Footwear with upper straps or thongs assembled to the sole by means of plugs (zoris).” On June 14, 2011, the Port issued an Informed Compliance Notice which advised Skiva that the subject entry was incorrectly classified as entered and should have be classified 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…” Subsequently, Skiva corrected the Entry Summary to reflect that the merchandise is classified in subheading 6402.99.3165, HTSUS.
ISSUE:
Whether the woman’s footwear is classified as “zori” in subheading 6402.20.00, HTSUS, or as “other footwear” in subheading 6402.99.31, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that "for legal purposes, classification shall be determined according to terms of the headings 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 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 2011 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:
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…
* * *
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.
Counsel correctly identifies the issue presented, which is whether or not the presence of an ankle strap on a sandal precludes that article from being classified as a “zori” under subheading 6202.20, HTSUS.
When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See 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 Cust. Ct. 128 (Cust. Ct. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). Although the term “zori” is not defined by the HTSUS, in T.D. 93-88, dated October 25, 1993, CBP issued definitional guidelines for the term zori.” Moreover, CBP has consistently held that to be classified as a zori, all of the following 7 characteristics must be met:
(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 than 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”.
See, e.g., Headquarters Ruling Letter (“HQ”) H030423, dated November 24, 2009, HQ H084599. Dated February 1, 2010, HQ H051480, dated August 27, 2010, and New York Ruling Letter (“NY”) N026341, dated April 28, 2008). 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 NY N040556, dated October 17, 2008 and NY N016708, dated September 21, 2007. We note that the ornaments attached to the upper meet this definition in that the large gem is loosely attached by a loose thread and that the tiny gems were glued on the upper.
In this case, the instant Leslie Sandal fails to meet the seventh requisite characteristic. As noted above, the upper segment in this case consists of an upper which extends from the thong and wraps around the ankle. The upper does not form either a “V”, “X”, or a “Y” shape and thus does not conform to the definition of zori. By definition, a “Y” shaped upper does not extend around the ankle. While we do not disagree with counsel that the ankle strap provides “added security and safety”, we do not agree that a sandal with an ankle strap falls within the common meaning of the term “zori.”
Counsel asserts that the ankle strap does not disqualify the sandal as a zori. To support this proposition, they cite to NY N064548, dated June 18, 2009, wherein CBP classified an open toe/heel thong sandal which had both an upper thong strap composed of rubber/plastics and a separate ankle strap secured by a decorative metal closure. Counsel argues that this ruling stands for the proposition that CBP does not consider ankle straps to be a factor that would place a sandal outside the “zori” definition. While CBP did not directly address the issue ankle straps in NY N064548, CBP found that the item in question was not a zori because the upper was not a one-piece. Thus, the characteristic at issue in NY N064548 is different from the issue concerning the instant Leslie sandal, in that we are not presented with an upper consisting of two different segments. Instead, the Leslie sandal features a one piece upper segment that does not conform to the requisite “X”, “Y”, or “V” shape. In N161242, dated May 16, 2011 and N052940, dated March 4, 2009, we also found that sandals were not zoris due to the presence of an ankle strap. Thus, when discussing whether an item is a “zori”, an ankle strap can fell a sandal in more than one way.
Based on the foregoing, we conclude that the Leslie sandal is provided for in subheading 6402.99.31, HTSUS. This decision is consistent with N082075, dated November 17, 2009 and HQ H051480, dated August 27, 2010.
HOLDING:
By application of GRIs 1 and GRI 6, the subject merchandise is classified in subheading 6402.99.31.65, 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 column one, general rate of duty under the 2011 HTSUS is 6 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are to mail this decision to the Requester no later than 60 days from the date of the decision. At that time, the Office of 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