HQ 953483
July 29,1993
CLA-2 CO:R:C:M 953483 MMC
Mr. Andre Assous
Andre Assous, Inc.
1370 Avenue of the Americas
Suite #303
New York, New York 10019
RE: Footwear; "Perfecto" style espadrilles; Notes 3 and 4(b) to
Chapter 64
Dear Mr. Assous:
This is in response to your letter addressed to National
Import Specialist James Sheridan at the U.S. Customs Service
Office in New York, N.Y., dated January 11, 1993, requesting a
pre-classification ruling of the "Perfecto" style espadrille
under the Harmonized Tariff Schedule of the United States
(HTSUS). Your letter was referred to this office for reply. A
sample was provided for our examination.
FACTS:
The merchandise consists of a ladies' slip-on type footwear
referred to as an espadrille, style "Perfecto". It has a textile
upper and a sole of rubber/plastics material which covers jute
coils.
A U.S. Customs Service laboratory analysis determined that
78% of the shoe by weight was textile material, 4% was
rubber/plastics material, 9% was leather, and 9% was paper
products.
ISSUE:
What is the classification of the "Perfecto" style
espadrille?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
Chapter 64, HTSUS, provides for footwear.
Classification of goods in chapter 64, HTSUS, is determined
by the materials of the upper and the outer soles. Note 4(b) to
Chapter 64, HTSUS, states in pertinent part:
Subject to note 3 to this chapter... [t]he constituent
material of the outer sole shall be taken to be the material
having the greatest surface area in contact with the
ground,...
Examination of the espadrille indicates that the material
having the greatest surface area in contact with the ground is
rubber. Although there are areas, known as "cut outs", where the
jute is exposed, the cut outs are "sunken" relative to the rubber
outer sole. The "sunken" position prevents the jute from
contacting the ground because as an outer sole it would be
relatively slippery and low in abrasion resistance. Therefore,
the espadrille is described by heading 6404, HTSUS, which
provides for [f]ootwear with outer soles of rubber, plastics,
leather or composition leather and uppers of textile materials.
Classification to the eight digit level is dependent on
whether the jute coils are considered part of the rubber sole.
Note 3 to chapter 64 states:
For the purposes of this chapter, the expression "rubber or
plastics" includes any textile material visibly coated (or
covered) externally with one or both of those materials.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN (E) to
Chapter 64, p. 875, states that:
(E) It should be noted that for the purposes of this
Chapter, the expression "rubber or plastics" includes any
textile material visibly coated or covered externally with
one or both of those materials, which means that the coating
or covering can by seen with the naked eye with no account
being taken of any resulting change of colour.
While the jute is "visibly covered" with rubber or plastics,
we are of the opinion that jute is not a textile material visibly
coated with rubber or plastic. The jute material itself was not
coated with plastic before it was cut to be part of the
espadrille. Instead, a separately created visible rubber sole
was attached to the jute. Therefore, note 3 to Chapter 64, HTSUS
does not apply.
The laboratory analysis conducted on the sample attributed
the jute portion of the espadrille to textile material. Four
percent of the total weight of the shoe was attributable to
plastic materials.
Consequently, the espadrille is classifiable in subheading
6404.19.25, HTSUS which provides for [f]ootwear 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: [l]ess than 10 percent by weight of rubber
or plastics: [w]ith uppers of vegetable fibers.
HOLDING:
The "Perfecto" style espadrille is classifiable as footwear
with open toes or heels of the slip-on type, that is less than 10
percent by weight of rubber or plastics with uppers of vegetable
fibers under subheading 6404.19.25, HTSUS and is dutiable at 7.5
percent ad valorem.
Sincerely,
John Durant, Director