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HQ 965980




January 7, 2003

CLA-2 RR:CR:TE 965980 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.1865

Barbara Y. Wierbicki, Esquire
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, New York
10036-8901

RE: Zoris; Footwear Definitions, T.D. 93-88; General Rule of Interpretation 3(b); Composite Good; Subheading 6402.99.1865, HTSUSA.

Dear Ms. Wierbicki:

The purpose of this correspondence is to respond to your request directed to the Customs Service, National Commodity Specialist Division, dated September 3, 2002. The correspondence in issue requested, on the behalf of your client, Avon Products, Inc., a binding classification ruling concerning the merchandise described as “zori slippers” and “flip flops with bag.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated September 3, 2002; (2) An examination of the sample footwear and carrying bag; and (3) A telephone conference between a member of my staff and counsel for Avon conducted on November 20, 2002.

FACTS

The articles in issue, identified by Avon as “zori slippers” and “flip flops with bag,” product number: PP 255289, are open-toe, open-heel, slip-on footwear. The articles have a “Y” shaped “upper” that is composed of rubber and attaches to the sole by means of three plugs. The entire outer surface of the upper is covered with green, blue and silver beads and sequins that are sewn to the upper. The soles of the instant articles are composed of foamed rubber and are of a uniform thickness of approximately five-eighths (5/8) of an inch. The soles have six alternating layers of green and blue foam. The soles do not have a separate insole.

The footwear will be imported and sold with a carrying bag made of a textile mesh of man-made fibers. The carrying bag measures approximately nine (9) inches in width and twelve and one-half (12 ½) inches in height. Counsel for the importer advises Customs that the carrying bags will be of different sizes in order to accommodate footwear of sizes: small, medium, large and extra large. The mesh is red on one side and blue on the other. It has a woven yellow drawstring and woven yellow trim at the top.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described footwear and carrying bag that will be imported together ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S.C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the Avon footwear, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 6402, HTSUSA, provides for “Other footwear with outer soles and uppers of rubber or plastics.” Chapter 64 note 4(a), applicable to the instant merchandise, provides that “[t]he 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 footwear in issue has an outer sole of rubber and, pursuant to note 4(a) of Chapter 64, it is deemed to have an upper of rubber. The plastic beads and sequins attached to the article by means of sewing are not taken into consideration for the purposes of determining the “material of the upper.”

Continuing the classification of the Avon footwear, the merchandise is classified in subheading 6402.99.1865, HTSUSA. Subheading 6402.99.1865, HTSUSA, provides for the classification of:

Other footwear with outer soles and uppers of rubber or plastics:

Other footwear:
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:
6402.99.1865 Other.

Avon suggests that its footwear should be classified in subheading 6402.20.0000, HTSUSA, 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 Customs Service disagrees with Avon’s contention. Although Avon’s footwear possesses many similarities to “zoris,” it is Customs determination that the merchandise in issue is not “zoris” as the meaning of that term is intended by Congress.

The initial responsibility of the Customs Service in classifying merchandise is to examine the plain meaning of the statutory text, in this instance, the Harmonized Tariff Schedule of the United States. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (Ct. Int’l Trade 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (Ct. Int’l Trade 1994). If the plain language of the tariff schedule establishes the clear and unambiguous intent of Congress, the classification inquiry is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).

The Customs Service, in Treasury Decision 93-88, issued on October 25, 1993, provided the trade community with footwear definitions utilized by Customs to classify footwear. See Customs Bulletin, Vol. 27, No. 46 (Nov. 17, 1993). It is Customs determination that the definition of “zoris” utilized by Customs and set forth in the Treasury Decision reflects the common and popular understanding of “zoris.” A “zori,” according to T.D. 93-88, must have all of the following characteristics:

It is wholly 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 a “X”.

A zori, according to the T.D. may have the following features:

Either a sole of one piece of foamed rubber or plastic or many horizontal layers of different colors joined together. A separate, loosely attached ornament on the upper, such as a plastic flower.

It is Customs determination that the Avon footwear is not a “zori” because is does not meet requirement 2 of the definition and the ornamentation is not comparable to that acceptable for zoris. Characteristic 2 of zoris is “[a]n upper which is a single, molded piece of rubber or plastic as the sole. The Avon article has an upper that is not a “single, molded piece of rubber or plastic.” The Avon merchandise has an upper that is made of rubber with beads and sequins firmly attached. The beads and sequins also fail to qualify as “[a] single, loosely attached ornamentsuch as a plastic flower.” The beads and sequins are not a single ornament, nor are they loosely attached. See NY G82901 (Nov. 13, 2000).

Classifying both the footwear and the carrying bag together, which is the condition in which they will be imported, Customs review of GRI 1 and 2 does not resolve the matter. A review of GRI 3 confirms that the articles are prima facie classifiable under two or more headings. The zoris, as previously discussed, are classifiable in heading 6402, HTSUSA, and the carrying bag is classifiable in heading 4202, HTSUSA. The footwear and the carrying bag, pursuant to GRI 3(b), are a composite good made up of different components. See generally General Rules for the Interpretation of the Harmonized System, Rule 3(b) Explanatory Note (IX). The footwear and the carrying bag are adapted and to be used together. The carrying bag is large enough to carry the footwear, but not designed or intended to carry additional personal effects. The carrying bag is color-coordinated and stylistically designed to complement the footwear. It is the determination of this office that the carrying bag would not generally be sold independently of the footwear. See HQ 963595 (Feb. 19, 2002).

Composite goods made up of different components “shall be classified as if they consisted of thecomponent which gives them their essential character.” General Rule of Interpretation 3(b). The GRI’s do not provide a definition for the phrase “essential character,” but the EN suggest an illustrative list of factors to consider. Explanatory Note Rule VIII to 3(b) states that the factors which may be relevant to the determination of “essential character” “will vary as between different kinds of goods,” but may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good. General Rules for the Interpretation of the Harmonized System, Rule 3 (b) Explanatory Note (VIII).

Customs examination of the footwear and the carrying bag confirm that it is the footwear that provides the composite article with its essential character. The footwear affords the article its primary value and role, as well as providing the greatest weight and bulk. See HQ 963595.

HOLDING

The Avon Products, Inc. footwear and carrying bag, identified as “zori slippers” and “flip flops with bag,” are classified in subheading 6402.99.1865, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is six (6) percent, ad valorem.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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