Tariff classification of "floral thong sandal"; reconsideration of NY N006001

HQ H019060 July 18, 2008 CLA-2 OT:RR:CTF:TCM H019060 GC CATEGORY: Classification TARIFF NO.: 6402.99.3165 HTSUSA Ms. Barbara Y. Wierbicki, Esq. Tompkins and Davidson, LLP 5 Hanover Square, 15th Floor New York, New York 10004 RE: Tariff classification of “floral thong sandal”; reconsideration of NY N006001 Dear Ms. Wierbicki: In New York Ruling Letter (NY) N006001, National Commodity Specialist Division, Customs and Border Protection (CBP), issued to your client, Avon Products, Inc. on February 16, 2007, a certain “floral thong sandal” (sandal) was classified under subheading 6402.99.4060 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for, in pertinent part: “[o]ther footwear with uppers of rubber or plastics: Other footwear: Other: Other: Footwear with open toes or open heels…: Other: For women.” We have since reviewed NY N006001 and find it to be in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on June 18, 2008, in Volume 42, Number 26, of the CUSTOMS BULLETIN. CBP received no comments in response to the notice. FACTS: The sandal discussed in N006001 is identified by style number PP 359887. It is a women’s open-toe, open-heel, toe-thong fashion sandal with a ½ - inch high plastic heel and a rubber/plastic sole. The “Y” configured strap-like vamp includes numerous decorative accessories or reinforcements. These accessories or reinforcements consist of eight small daisy-like flowers with plastic material petals and ¼ - inch diameter, round shiny metal centers. There are also six more small round metal stud-like accessories or reinforcements arranged along the sides of the upper and the sandal also has a heel strap closure with a small metal buckle. In issuing NY N006001, it was determined by visual estimation that the metal accessories and reinforcements account for more than 10% of the external surface area of the sandal upper. Subsequent laboratory analysis has indicated that following constitutes the specific breakdown of the external surface area upper: 93.6 percent rubber/plastic and 6.4 percent metal (buckle plus fourteen rivets). The submitted sample is not marked with a country of origin. However, you have stated that your client will mark the merchandise in accordance with the requirements of 19 U.S.C. §1304 upon importation. As such, this letter will discuss only the issue of tariff classification of the subject sandal. ISSUE: What is the proper classification under the HTSUS for the subject merchandise? 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. For classification at the subheading level, GRI 6 is implicated. It states: For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. 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, * * * 6402.99.40 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 6402.99.20 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… As indicated by the subheading text above (at the fifth indentation) note 4 to chapter 64, HTSUS, is implicated here. Note 4(a), which pertains to the composition of the upper, states, in pertinent part: 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. Consequently, in order to satisfy the terms of the subheading, which references note 4, the subject merchandise must: (1) have uppers of which over 90 percent of the surface area is rubber or plastics; (2) not possess a foxing or foxing-like band applied or molded at the sole and overlapping the upper; and (3) not be designed to be worn over, or in lieu of, other footwear as protection against water, oil, grease or chemicals or cold or inclement weather. The principal issue in this case concerns whether or not the uppers consist of more than 90 percent rubber or plastics. The laboratory analysis conducted after NY N006001 was issued confirms that the upper of the subject sandal is indeed composed of over 90 percent rubber or plastics. As a consequence, the sandal is most specifically described in subheading 6402.99.31, HTSUS, as opposed to 6402.99.40, HTSUS. HOLDING: By application of GRI 6 and GRI 1, the “floral thong sandal” (item number PP359887) is classifiable under heading 6402, HTSUS, and specifically provided for in subheading 6402.99.3165, HTSUSA, which provides for, in pertinent part: “[o]ther footwear with 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…: Other: Other… Other: For women.” The column one, general rate of duty is 6 percent ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov. EFFECT ON OTHER RULINGS: NY N006001, dated February 16, 2007 is hereby REVOKED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division