CLA-2 CO:R:C:M 955548 DFC
R. Patrick Doyle
Traffic Administration Manager
Thom McAn Shoe Company
67 Millbrook Street
Worcester MA 01606-2804
RE: Footwear, women's; Espadrille; Open heels; T.D. 93-88;
HRL 955282
Dear Mr. Doyle:
This is in reference to your letter dated November 18, 1993,
to the Area Director of Customs in New York, concerning the
tariff classification under the Harmonized Tariff Schedule of the
United States (HTSUS), of a woman's espadrille type shoe produced
in Spain. Your letter, together with the sample submitted, has
been referred to this office for a response.
FACTS:
The sample shoe, identified by stock numbers 77213 and
77219, has a vegetable fiber textile upper, a predominately
rubber outsole, a jute rope midsole and a jute rope faced,
composition cork heel wedge. The textile upper has a closed
front vamp section which fully encloses the toes, a full back
heel section with a semicircular opening [3/4 inch high by 1-1/2
inch wide] at the bottom of the heel, and an open midsection that
has a 1/2 inch wide textile ribbon strap which passes through a
central loop at the front and two eyelets on each side of the
heel at the back. The ribbon strap is used to tie the shoe to
the wearer's foot at the ankle. This shoe is under 10% by weight
of rubber or plastics.
You suggest that the sample espadrille is properly
classifiable under subheading 6404.19.25, HTSUS, which provides
for footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of textile materials, footwear
with outer soles of rubber or plastics, other, footwear with open
toes or open heels, less than 10 percent by weight of rubber or
plastics, with uppers of vegetable fibers.
ISSUE:
Does the sample espadrille qualify as having an "open heel"
for tariff purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]." In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.
Subheading 6404.19.25, HTSUS, provides for footwear with
outer soles of rubber, plastics, leather or composition leather
and uppers of textile materials, footwear with outer soles of
rubber or plastics, other, footwear with open toes or open heels,
less than 10 percent by weight of rubber or plastics, with uppers
of vegetable fibers.
According to our research, the question of how large an
opening or how much of the heel needs to be uncovered to classify
a shoe as having "open heels" has not been previously addressed.
The HTSUS and the Harmonized Commodity Description and Coding
System Explanatory Notes (EN) provide no answers to this
question. However, on November 17, 1993, in T.D. 93-88 (27 Cust.
Bull. & Dec. No.46), Customs published certain footwear
definitions used by Customs import specialists in classifying
footwear under Chapter 64, HTSUS. Inasmuch as these definitions
were provided merely as guidelines and are not to be construed as
Customs rulings, they are not dispositive. However, we believe
they should be consulted. On page 6 of that document the term
"Open" was defined in pertinent part , as follows:
. . . [i]n open heeled shoes, all or part of the back of the
wearer's heel can be seen.
Following this definition, it is our view that the sample
espadrille qualifies as having an "open heel" for tariff
purposes. It is our observation that part of the back of the
wearer's heel will be visible through the opening at the bottom
of the heel. See Headquarters Ruling Letter 955282 dated March
4, 1994, in which this office reached the same conclusion on
similar footwear.
HOLDING:
The sample espadrille, identified by stock numbers 77213 and
77219, is dutiable at the rate of 7.5% ad valorem under
subheading 6404.19.25, HTSUS.
Sincerely,
John Durant, Director