Revocation of NY N004573; 6402.99.3165, HTSUS; flip-flop sandals

HQ H008516 June 25, 2008 CLA-2 OT:RR:CTF:TCM H008516 JER CATEGORY: Classification TARIFF NO.: 6402.99.3165 Ms. Irina Parker Avon Products, Inc. 1251 Avenue of the Americas New York, NY 10020-1196 RE: Revocation of NY N004573; 6402.99.3165, HTSUS; flip-flop sandals Dear Ms. Parker: This is in response to your request for reconsideration of New York (“NY”) Ruling Letter N004573, issued on January 9, 2007, concerning the classification of certain merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). At issue is the correct classification of the flip-flop sandal identified as 3 Flip Flops in a Bag, item PP365397 and imported by Avon Products, Inc. U.S. Customs and Border Protection (“CBP”) classified this merchandise under heading 6404, HTSUS, which provides for footwear with outer soles of rubber or plastics and uppers of textile material. After reviewing NY N004573, we have found that ruling to be in error. For the reasons set forth in this ruling, we are revoking NY N004573. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on February 20, 2008, in the Customs Bulletin, Volume 42, No. 9. No comments were received in response to the notice. FACTS: The merchandise at issue is an open toe/heel, thong sandal with an outer sole of rubber or plastics and an upper of brushed or scratched ethyl vinyl acetate (EVA). The top piece is a toe criss-cross with a terry sock and EVA sole. The footwear has a polyvinyl chloride trim (PVC) around the toe criss-cross upper and a PVC trim along the foot bed. The flip-flops appear in three different colors, yellow, pink and blue. In N004573, CBP incorrectly identified the material of the upper as a textile fabric because of the appearance of fibers and the tactile surface. Upon further examination, we agree that the material of the upper is actually brushed EVA and not of textile material. Avon has now provided CBP with additional information about the subject merchandise. We have considered your arguments and, based on the new information provided to CBP, we now conclude that the previous classification of your merchandise under heading 6404, HTSUS, was incorrect. Our reasoning is set forth in the “Law and Analysis” section below. ISSUE: Whether classification of the flip-flop sandal(s), item PP365397, is properly under heading 6404, HTSUS, or alternatively, heading 6402, HTSUS? LAW AND ANALYSIS: Classification under the HTSUS is 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 HTSUS provisions under consideration are as follows: 6402 Other footwear with outer soles and uppers of rubber or plastics: * * * 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 For women: * * * 6402.99.3165 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 having a foxing or foxing-like band wholly or almost wholly of rubber or plastic applied or molded at the sole and overlapping the upper: * * * 6404.19.35 Other CBP previously classified the flip-flop sandals at issue in heading 6404, HTSUS, as footwear with outer soles of rubber or plastics and uppers of textile materials. We viewed the uppers to be of textile material because there are visible fibers which protrude the surface of the footwear upper and are tactile in presentation. However, based on the sample and additional information provided to CBP and after re-examination of the subject merchandise, we are now of the view that the flip-flop sandals are not described in heading 6404, HTSUS. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. EN 64.02 explains: This heading covers: Thong-type sandals in which the thongs are attached to the sole by plugs which lock into the holes of the soles. * * * It is your view that the correct classification of this merchandise is under heading 6402, HTSUS, as other footwear with outer soles and uppers of rubber or plastics. In Headquarters Ruling Letter (“HQ”) 966589, dated February 24, 2004, CBP ruled that certain men’s sandals were classifiable under heading 6402, HTSUS, because the plastic material comprised over 90 percent of the sandal’s external surface area and constituted the substance of the sandal’s upper. As we noted in HQ 966589, the Explanatory Notes to heading 6402, HTSUS, state that “other footwear…with uppers of rubber or plastics” are properly classifiable in heading 6402, HTSUS. In the instant case, the flip-flop sandals are similar to the men’s sandal of HQ 966589, in that the uppers are composed almost entirely of ethyl vinyl acetate (EVA) with PVC trim. Like the sandals in HQ 966589, the uppers of the subject merchandise are made of over 90 percent plastic material and constitute the substance of this flip-flop sandal. Therefore, the flip-flop sandals are properly classified under heading 6402, HTSUS, specifically in subheading 6402.99.3165, HTSUS. HOLDING: By application of GRI 1, the flip-flop sandals, item PP365397, with uppers of scratched EVA and PVC trim are, classified in heading 6402, HTSUS, and are specifically provided for in subheading 6402.99.3165, HTSUS, which provides for: “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 … is rubber or plastic …: Other: Other, Other: For women: Other.” The column one, general rate of duty is 6 percent ad valorem. EFFECT ON OTHER RULINGS: NY N004573, dated January 9, 2007, is hereby revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division