HQ H250464
CLA-2 OT:RR:CTF:FTM HQ H250464 TSM
Port Director
Port of Charleston, South Carolina
U.S. Customs and Border Protection
200 East Bay Street
Charleston, SC 29401
Attn: Gregory Riley, Import Specialist
Re: Protest and Application for Further Review No. 1601-13-100264; Classification of beach shoes.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 1601-13-100264, timely filed on August 19, 2013, 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”). Samples of the subject merchandise were received and examined by this office.
FACTS:
The subject merchandise consists of seventeen styles of open toe/open heel flip-flop sandals described as “beach shoes.” The beach shoes at issue were entered on December 20, 2011 and January 10, 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).” CBP requested and received a description and a sample for each style. Most of the samples were sent to the CBP laboratory for analysis. Liquidation of the entries was suspended pending the results of the laboratory reports. On February 22, 2013 and March 1, 2013, the subject merchandise was liquidated under subheading 6402.99.49, HTSUS, which in 2011 and 2012 provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other.”
Styles SH71914M, SH72101M and SH71917L were entered in 2011, and the remaining styles were entered in 2012.
Protestant claims that the imported sandals are classified as follows:
Styles SH72101M, SH71914M, SH71917L, SH72333M, SH72359M, SH72336M, SH72356G, SH72353L and SH72344L, 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”;
Styles SH72350L, SH72343L and SH72355G, 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)”; Protestant also proposed an alternative classification for Style SH72350L in subheading 6402.99.31, HTSUS;
Styles SH72338M and SH72340M, in subheading 6402.99.49, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other”;
Style SH72351L 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”; or alternatively in subheading 6405.20.90, HTSUS, which provides for “Other footwear: With uppers of textile materials: Other”;
Style SH72348C in subheading 6405.20.30, HTSUS, or alternatively in subheading 6402.99.41, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: 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 SH72347G in subheading 6405.20.90, HTSUS, 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.”
ISSUE:
What is the tariff classification of the footwear at issue under the 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 of the first entry. (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. 1601-13-100264 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 New York Ruling Letter (NY) I84526, dated July 31, 2002.
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 2011 and 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
* * *
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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
6402.99.41 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
6402.99.49 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 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.”
Footwear styles SH72343L and SH72355G
Protestant argued that footwear styles SH72343L and SH72355G are classified in subheading 6402.20.00, HTSUS.
Upon review and inspection of the samples, we find that these footwear styles meet the seven characteristics of the term “zori,” laid out in the above-referenced T.D. 93-88, dated October 25, 1993. These footwear styles are made wholly of plastics, their uppers are made of a single molded piece of plastic, not more than 2 inches thick at their thickest point. Also, at their thickest point the uppers are no more than 3/8 inch thicker than the thinnest point and no more than 35 percent thicker than the thinnest point. The soles do not have separate insoles. The uppers also form a “Y” plugging at the end of each segment, penetrating all of the sole, and thongs that go between first and second toes. Accordingly, we conclude that they are classified under subheading 6402.20.00, HTSUS.
(2) Footwear styles SH72101M, SH72336M, SH72333M, SH72359M, SH72353L and SH72350L
Protestant argued that footwear styles SH72101M, SH72336M, SH72333M, SH72359M and SH72353L are classified in subheading 6402.99.31, HTSUS. With regard to footwear style SH72350L, Protestant alleges that it is classified in subheading 6402.20.00, HTSUS, or alternatively in subheading 6402.99.31, HTSUS.
Upon review and examination of the samples, we find that the above-referenced footwear styles are flip-flops with rubber or plastic outer soles, straps made of plastic or a combination of plastic and textile, and textile thongs. As they all, except styles SH72333M and SH72350L, have textile thongs, and are not wholly of rubber or plastic, they are not classifiable in subheading 6402.20.00, HTSUS. Styles SH72333M and SH72350L do not have a plastic upper segment with plugs at the ends, and are not classifiable in subheading 6402.20.00, HTSUS.
Style SH72101M is a man’s flip-flop slip-on shoe style with plastic/rubber soles and straps. The tops of the straps are made of 100 percent polyurethane and the inside of the straps (next to the foot), as well as the thong, are made of textile. According to the CBP laboratory report, its uppers are made of more than 90% of rubber or plastics. Therefore, we find that as footwear with outer soles of rubber or plastics, and uppers with more than 90% of the external surface area of rubber or plastics, this footwear style is classified in subheading 6402.99.31, HTSUS.
Styles SH72333M, SH72359M and SH72336M, are men’s slip-on flip-flop styles shoes with rubber or plastic outer soles (Style SH72333M has crossed straps made of 100 percent plastic that have three rows of decorative textile stitching on each strap; Style SH72359M has y-straps made 100% of plastic and a textile thong; and Style SH72336M has y-straps made of polyurethane and a textile thong). Upon review and examination of the samples, we find that the three footwear styles at issue are footwear with outer soles of rubber or plastics, and uppers with more than 90% of the external surface area of rubber or plastics. Accordingly, this footwear style is also classified in subheading 6402.99.31, HTSUS.
Style SH72353L is a women’s slip-on flip-flop shoe style with plastic outer soles, straps made of polyurethane on the outside and textile on the inside (next to the foot), and a textile thong. Upon review and examination of the sample, we find that this footwear style is also classified in subheading 6402.99.31, HTSUS, as footwear with outer soles of rubber or plastics, and uppers with more than 90% of the external surface area of rubber or plastics.
Style SH72350L is a traditional flip-flop shoe style with plastic soles and one-piece molded plastic y-straps. Since this style’s uppers are of made more than 90% of plastics, we find that it is also classified in subheading 6402.99.31, HTSUS.
(3) Footwear styles SH72340M and SH72338M
Protestant argued that the two footwear styles at issue are classified in subheading 6402.99.49, HTSUS.
Style SH72338M is a man’s flip-flop style slip-on shoe with straps, with the top of the straps being made of 100 percent polyurethane and the inside of the straps (next to the foot) being made of textile, and a textile thong. The sole is composed of several layers of rubber or plastics glued together. According to the CBP laboratory report, the surface area of this style’s upper is 85.1% rubber/plastic. Style SH72340M, is a man’s slip-on flip-flop, made of rubber or plastics and textile, with a plastic and textile upper, textile y-straps having a plastic band that is sewn on top of the textile component, and a textile thong.
Upon review of the samples and CBP lab report, consistent with Note 4 (a) to Chapter 64, referenced above, we find that the constituent material having the greatest external surface area of the uppers of the footwear styles at issue is plastic. Similarly, consistent with Note 4 (b) to Chapter 64, we find that the constituent material of the outer soles, having the greatest surface area in contact with the ground, is rubber or plastics. Therefore, we find that these footwear styles are provided for in subheading 6402.99.49, HTSUS.
(4) Footwear styles SH72347G, SH72348C and SH72351L
Protestant argues that all three of the footwear styles at issue are classified in heading 6405, HTSUS. Protestant also argues that footwear style SH72348C is alternatively classified in subheading 6402.99.41, HTSUS. Protestant further argues that footwear style SH72351L is alternatively classified in subheading 6404.19.36, HTSUS. Protestant also argues that in the alternative Style SH72347G is classified in subheading 6404.19.37, HTSUS.
Style SH72348C is a children’s flip-flop with straps made of a combination of polyurethane plastic and polyester textile fabric, a textile thong, and rubber or plastic soles covered with a textile fabric. The textile provides the greatest surface area of the upper. Style SH72347G is a children’s slip-on sandal with textile straps made of polyester fabric and a plastic sole covered with textile, and with a textile thong covered by a small plastic tab where it meets the straps. With regard to footwear style SH72347G, the CBP laboratory report provides that the sample has an upper that is of a polyester woven textile and rubber or plastic material. The composition of the external area of the upper is 92.3% textile material and 7.7% plastic. The constituent material of the outer sole consists of a knitted polyester textile which covers layers of foamed rubber/plastic. The textile outer sole does not satisfy the HTSUS Chapter 64 Note 5 criteria for durability and strength. Style SH72351L is a women’s flip-flop style with rubber or plastic soles covered with a thin layer of fabric, and with textile straps and thong.
Upon review and examination of the samples, we find that the soles of all three styles are covered with textile materials that do not satisfy the HTSUS Chapter 64 Additional U.S. Note 5 criteria (consistent with the CBP lab report). Therefore, we find that they are classified in heading 6404, HTSUS, subheading 6404.19.37, HTSUS.
We disagree with the classifications in heading 6405 proposed by the Protestant. Heading 6402, HTSUS, the heading in which these were liquidated, provides for “Other footwear with outer soles and uppers of rubber or plastics.” While these three styles do have rubber or plastic outer soles (the textile layers on the outer soles are not being taken into account consistent with Note 4(b) to Chapter 64 and Additional U.S. Note 5 to Chapter 64), these footwear styles do not have “uppers of rubber or plastics” since they have straps that are made mostly of polyester textile fabric and textile thongs. With regard to heading 6405, HTSUS, we note that it provides for “Other footwear” and need not be considered as it covers combinations of soles and uppers not provided for in prior headings of Chapter 64. In this case the footwear is composed of rubber or plastic soles and textile uppers, which combination is provided for in heading 6404. With regard to subheading 6404.19.36, HTSUS, we note that the record and examination of the sample do not support a finding that the uppers of footwear style SH72351L are uppers of vegetable fibers; therefore, we find that this subheading is also not applicable.
(5) Footwear styles SH71914M, SH72344L, SH72356G and SH71917L
Protestant alleges that the above-referenced footwear styles are classified in subheading 6402.99.31, HTSUS.
Style SH71914M is a man’s flip-flop slip-on shoe with a rubber or plastics sole, straps made of polyurethane (next to the foot) and textile (top of the straps), and a textile thong. Style SH72344L is a women’s flip-flop style with rubber or plastics soles, straps made of textile and a textile thong. Style SH72356G is a women’s flip-flop style with rubber or plastics soles, straps made of textile and a textile thong.
Style SH71917L is a woman’s flip-flop slip-on shoe with rubber or plastics outer sole and uppers made of a combination of plastics and textile. With regard to this style, the CBP laboratory report provides that the composition of the external area of the upper is 94.1% rubber or plastics and 5.3% textile, and the outer sole is wholly of rubber/plastics. Examination of the sample’s upper under magnification revealed that the rubber/plastics material of the upper is abraded, rendering fibers that are visible and tactile on the surface, as such it is considered a textile for classification purposes. See NY N046299, dated December 17, 2008; NY N148595, dated February 16, 2011; and NY N103345, dated May 13, 2010 (finding that the fibrous material on the upper’s textile surface area, that is both visible and tactile, comprises the external surface area of the upper). Therefore we find that the external surface area of the upper is predominantly textile for tariff classification purposes.
Upon review and examination of the samples, we disagree with the classification proposed by the Protestant. While subheading 6402.99.31, HTSUS, covers footwear with uppers of which over 90 percent of the external surface area is rubber or plastics, the uppers of the above-referenced footwear styles are textile in accordance with Note 4(a) to Chapter 64, HTSUS. Therefore, we find that these footwear styles are 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.”
HOLDING:
By application of GRIs 1 and 6, we find that the footwear at issue is classified as follows:
Footwear styles SH72343L and SH72355G are classified in 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 2011-2012 column one, general duty rate is Free.
Footwear styles SH72101M, SH72336M, SH72333M, SH72359M, SH72353L and SH72350L are classified in 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 2011-2012 column one, general duty rate is 6%.
Footwear styles SH72340M and SH72338M are classified in 6402.99.49, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 6402.99.33 and except footwear having a foxing or a foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other.” The 2011-2012 column one, general duty rate is 37.5%.
Footwear styles SH72347G, SH72348C, and SH72351L are classified 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.” The 2011-2012 column one, general duty rate is 12.5%.
Footwear styles SH71914M, SH72344L, SH72356G and SH71917L are 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 2011-2012 column one, general duty rate is 37.5%.
You are instructed to ALLOW the protest in part with regard to footwear styles SH72343L, SH72355G, SH72101M, SH72336M, SH72333M, SH72359M, SH72353L, SH72350L, SH72340M, SH72338M, SH72347G. You are also instructed to DENY the protest in part with regard to footwear styles SH72348C, SH71914M, SH72344L, SH72351L, SH72356G and SH71917L, except to the extent reclassification of the merchandise as indicated above results in a partial allowance with regard to footwear styles SH72348C and SH72351L.
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 website 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