HQ H301288
OT:RR:CTF:FTM HQ H301288 TSM
Port Director
Port of Charleston, South Carolina
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401
Attn: Drusilla Clark-Addison, Senior Import Specialist
Re: Protest and Application for Further Review No. 1601-14-100087; Classification of beach shoes.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 1601-14-100087, timely filed on April 28, 2014, on behalf of Strand Import & Distributors, Inc. (“Protestant”) regarding the tariff classification of various models of slip on, flip-flop style beach shoes under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
Thirteen styles of open toe/open heel flip-flop sandals, described as “beach shoes,” were identified as subject to Protest No. 1601-14-100087 (style numbers: SH72022L; SH72023C; SH6001CPHW; SH72032L; SH72034L; SH72357L; SH72354L; SH72342L (SH72342LW in wide width); SH72334M; SH72312M; SH72337M; SH72339M; SH72358M (SH72358MW in wide width). As style numbers SH6001CPHW and SH72032L were liquidated as entered, and Protestant agrees with their classification, these styles are not at issue in this decision on Application for Further Review of Protest No. 1601-14-100087. A sample of style SH72034L was received and examined by this office.
The eleven styles of beach shoes at issue (style numbers: SH72022L; SH72023C; SH72034L; SH72357L; SH72354L; SH72342L/W; SH72334M; SH72312M; SH72337M; SH72339M, and; SH72358M/W) were entered on February 8, 2012, 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 (zoris).” On January 10, 2014, the subject footwear was liquidated under subheading 6404.19.59, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued not over $3/pair: Other: Other.”
Protestant claims that the imported footwear are classified as follows:
Styles SH72022L, SH72023C and SH72357L in 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 (zoris)”;
Style SH72034L in subheading 6404.19.39, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other”;
Styles SH72337M, SH72339M and SH72358M/W in subheading 6405.20.30, HTSUS, which provides for “Other footwear: With uppers of textile materials: With uppers of vegetable fibers”; or alternatively in subheading 6404.19.36, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter”;
Style SH72342L/W in subheading 6405.20.90, HTSUS, which provides for “Other footwear: With uppers of textile materials: Other”; or alternatively in subheading 6404.19.37, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter”;
Styles SH72334M, SH72312M and SH72354L in subheading 6402.99.31, 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.”
ISSUE:
What is the tariff classification of the footwear at issue under the HTSUS.
LAW AND ANALYSIS:
Initially, we note that this matter 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 of the entries at issue. See 19 U.S.C. § 1514(c)(2).
Further Review of Protest No. 1601-14-100087 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with Headquarters Ruling Letter (“HQ”) H084599, dated February 1, 2010, and HQ H030423, dated November 24, 2009.
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.
Note 3 to Chapter 64 provides in pertinent part:
For the purposes of this chapter:
The terms "rubber" and "plastics" include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting change of color.
* * *
Note 4 to Chapter 64 provides in pertinent part:
Subject to note 3 to this chapter:
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.
* * *
Additional U.S. Note 5 to Chapter 64 provides as follows:
For the purposes of determining the constituent material of the outer sole pursuant to note 4(b) of this chapter, no account shall be taken of textile materials which do not possess the characteristics usually required for normal use of an outer sole, including durability and strength.
* * *
The 2012 HTSUS provisions 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 (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
* * *
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 Other:
Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
Other:
6404.19.36 With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter
* * *
6404.19.37 With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter
* * *
6404.19.39 Other
* * *
6405 Other footwear:
* * *
6405.20 With uppers of textile materials:
6405.20.30 With uppers of vegetable fibers
* * *
6405.20.90 Other
* * *
Although the term “zori” is not defined by the HTSUS, in T.D. 93-88, dated October 25, 1993, CBP issued definitional guidelines for this term for purposes of classifying footwear in Chapter 64, HTSUS. “Zoris” were defined in T.D. 93-88 as footwear that must have the following parameters: (1) wholly of rubber or plastic; (2) an upper that is a single, molded piece of rubber or plastic; (3) a foamed rubber or plastic sole, 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 no 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 that goes between the first and second toes, or has straps (segments) which form an “X.”
Footwear styles SH72022L, SH72023C and SH72357L
Styles SH72022L, SH72023C and SH72357L are slip-on, open toe, open heel, flip flop sandals. Both their soles and uppers are made of plastic. The plastic soles are uniform in thickness, are less than two inches thick and do not have separate insoles. The uppers are molded in “Y” shaped thong single pieces, attached to the outer soles exclusively by means of three plugs that extend through the outer soles.
These footwear styles meet the seven “zori” characteristics set forth in the above-referenced T.D. 93-88. Accordingly, we conclude that they are classified under subheading 6402.20.00, HTSUS.
Footwear style SH72034L
Style SH72034L is a women’s slip-on, open toe, open heel, flip flop sandal with a textile upper and a plastic sole.
This style meets the footwear characteristics set forth in subheading 6404.19.39, HTSUS, and classification is proper in this provision.
Footwear styles SH72337M, SH72339M, SH72358M (and SH72358MW for wide)
Styles SH72337M and SH72339M are men’s slip-on, open toe, open heel, flip flop sandals. Both have a plastic sole constructed of EVA with a fabric overlay. The uppers are made of canvas, which is a textile made from vegetable fiber.
Styles SH72358M and SH72358MW are men’s slip-on, open toe, open heel, flip flop sandals. Both styles have soles constructed of EVA with a fabric overlay. The uppers are made of 75% canvas fabric and 25% polyurethane.
These footwear styles meet the footwear characteristics set forth in subheading 6404.19.36, HTSUS, and classification is proper in this provision.
Footwear styles SH72342L (and SH72342LW for wide)
Styles SH72342L and SH72342LW are women’s slip-on, open toe, open heel, flip flop sandals. The uppers are made of a man-made fabric and the soles are made of rubber with thin layer of non-vegetable textile material covering the area touching the ground.
These footwear styles meet the footwear characteristics set forth in subheading 6404.19.37, HTSUS, and classification is proper in this provision.
Footwear styles SH72354L, SH72334M and SH72312M
Style SH72354L is a women’s slip-on, open toe, open heel flip flop sandal with a plastic sole and polyurethane upper.
Styles SH72334M and SH72312M are men’s slip-on, open toe, open heel flip flop sandals with plastic EVA soles and plastic uppers made of polyurethane that simulates the look of a textile or soft leather.
These styles meet the footwear characteristics set forth in subheading 6402.99.31, HTSUS, and classification is proper in this provision.
HOLDING:
By application of GRIs 1 and 6, we find that the footwear at issue is classified as follows:
Footwear styles SH72022L, SH72023C and SH72357L are classified in 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 (zoris).” The 2012 column one, general duty rate is Free.
Footwear style SH72034L is classified in subheading 6404.19.39, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other.” The 2012 column one, general duty rate is 37.5% ad valorem.
Footwear styles SH72337M, SH72339M and SH72358M (SH72358MW in wide width) are classified in subheading 6404.19.36, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: With uppers of vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The 2012 column one, general rate of duty is 7.5% ad valorem.
Footwear styles SH72342L and SH72342L (SH72342LW in wide width) are classified in subheading 6404.19.37, HTSUS, which provides “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: With uppers of textile material other than vegetable fibers and having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter.” The 2012 column one, general rate of duty is 12.5% ad valorem.
Footwear styles SH72354L, SH72334M and SH72312M are classified in subheading 6402.99.31, 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.” The 2012 column one, general rate of duty is 6% ad valorem.
You are instructed to ALLOW the Protest with regard to footwear styles SH72022L, SH72023C, SH72357L, SH72034L, SH72337M, SH72339M, SH72358M (SH72358MW in wide width), SH72342L (SH72342LW in wide width), SH72354L, SH72334M and SH72312M.
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 this decision, the Office Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP website at www.cbp.gov, and by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division