HQ H281941
CLA-2 OT:RR:CTF:FTM HQ H281941 TSM
Center Director
Apparel, Footwear and Textile CEE
200 East Bay Street
Charleston, South Carolina 29401
RE: Internal Advice Request; Tariff Classification of Certain Footwear.
Dear Center Director:
This is in response to your Request for Internal Advice, dated July 20, 2016, initiated by Tory Burch LLC (“Tory Burch”), concerning whether certain footwear is classified 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).” Pursuant to a request from Tory Burch, a teleconference was held with members of my staff on November 14, 2018.
FACTS:
On April 25, 2016, Tory Burch filed a submission requesting internal advice regarding the tariff classification of the footwear entered by it between January 27, 2015 and February 22, 2016. Attached to the submission was a schedule of all entries by Tory Burch, covering the above-referenced dates. Tory Burch also provided a listing with, among other information, footwear style numbers for nine footwear styles that have been classified in subheading 6402.20 of the Harmonized System (“HS”) by several countries in the European Union. Attached were also images of seven of those styles. During the November 14, 2018 teleconference, Tory Burch representatives stated that they were not requesting the tariff classification of the footwear styles featured in the seven attached images. Accordingly, the tariff classification of those styles is not addressed in this decision.
On or about June 2017, Tory Burch also forwarded several footwear samples to us for examination. The samples provided were of the following styles (1) Style 32158638, (2) Style 22158570, (3) Style 90008765, (4) Style 31158555, (5) Style 50008666, and (6) Style 41158535. The samples are returned with this decision.
ISSUES:
What is the tariff classification of the footwear styles 32158638, 22158570, 90008765, 31158555, 5000866 and 41158535?
LAW AND ANALYSIS:
Classification determinations under the HTSUS are 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.
The 2015 and 2016 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)
* * *
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 seven characteristics must be met:
It is wholly of rubber or plastic.
An upper which is a single, molded piece of rubber or plastic as the sole.
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.
At its thickest point, the sole is less than 2 inches thick.
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.
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.
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 an “X”.
See HQ H084599 (Feb. 1, 2010) and HQ H030423 (Nov. 24, 2009)(classifying in 6402.20.00, HTSUS, footwear meeting the seven “zori” characteristics).
In its submission, Tory Burch argued that subheading 6402.20.00, HTSUS, is not limited to “zoris” and covers any footwear with upper straps or thongs assembled to the sole by means of plugs. In this regard, Tory Burch stated that unlike subheading 6402.20.00, HTSUS, which includes the word “zoris,” the corresponding subheading of the HS nomenclature does not include the word “zoris.” Tory Burch further alleged that tariff classification decisions issued by other signatories to the HS Convention, such as Great Britain, Germany and the Netherlands, classified various types of footwear in subheading 6402.20 of the HS. The footwear types at issue in those classification decisions incorporate features that would preclude them from being “zori” as defined by CBP rulings.
We note that when determining the tariff classification of any merchandise, we apply the text of the HTSUS. In this instance, at issue is subheading 6402.20.00, 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).” Although the text of this subheading is not identical to the corresponding subheading of the HS, we find that this is a “textual adaptation[ ] … necessary to give effect to the Harmonized System in … domestic law” within the meaning of Article 3 of the HS Convention. Although there is evidence that the interpretation of the scope of subheading 6402.20 is different in several European countries, the United States is not bound to abide by the decisions of other HS signatories. See HQ 959487 (Sept. 16, 1997) (finding that CBP is not bound by a Canadian classification). Accordingly, we conclude that subheading 6402.20.00, HTSUS, is limited to “zori” footwear, as defined by CBP rulings.
We next turn to the tariff classification of the specific footwear styles at issue in this case. We have examined the following footwear styles, samples of which were provided by Tory Burch: (1) Style 31258638, (2) Style 22158570; (3) Style 90008765; (4) Style 31158555; (5) Style 50008666; and (6) Style 41158535. Upon examination, we found that these footwear styles feature the following characteristics: (1) they are made wholly of rubber/plastic; (2) their uppers are made of a single molded piece of rubber/plastic; (3) their foamed rubber or plastic soles are approximately uniform in thickness, i.e., at their thickest point the soles are no more than 3/8 inch thicker than the thinnest point and no more than 35 percent thicker than the thinnest point; (4) their soles are less than 2 inches thick at their thickest point; (5) the soles do not have separate insoles; (6) the molded rubber or plastic upper segments have plugs at the end of each segment and each plug penetrates all of the sole; and (7) the uppers have straps which form a “V” or “Y” and thongs that go between first and second toes. Since these footwear styles meet the seven “zori” characteristics as defined by CBP rulings, we conclude that they are classified under subheading 6402.20.00, HTSUS.
HOLDING:
By application of GRI 1 and 6, we conclude that footwear styles 32158638, 22158570, 90008765, 31158555, 50008666 and 41158535, discussed above, 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 2015 and 2016 column one, general rate of duty is Free.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division