CLA-2 RR:TC:TE 958550 jb
TARIFF NO: 6404.19.80; 6404.19.35
Port Director
U.S. Customs Service
6 World Trade Center, Suite 716
New York, NY 10048-0945
RE: Decision on Application for Further Review of Protest No.
1001-95-105534; women's espadrilles; Note 4(b) to Chapter 64,
HTSUSA; heat molded-on rubber outer sole is not a protector
or attachment; lace straps serve a functional purpose
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of C.A.T. US, Inc., on June 22,
1995, against your decision regarding the classification of
women's espadrille shoes. All entries were liquidated on March
24, 1995. Only samples of one of the subject styles, "Carmen",
were provided to this office for examination.
FACTS:
The merchandise consists of two styles of women's espadrille
shoes. The first style, referenced style name "Carmen", consists
of a textile upper which features a closed toe and heel, a thick
jute platform midsole and a rubber outer sole. Two samples of
this style were submitted to this office, one style features a
short lace, and the second style features a much longer lace.
The shoe has ten metal eyelet holes situated near the top edges
of the upper, which are spaced in a symmetrical pattern around
the circumference of the topline opening. A 5/8 inch wide flat
textile lace is laced into the eyelets. On the style with the
longer lace, after exiting the last pair of eyelets the ends are
still sufficiently long so that they can be wrapped and securely
tied around the wearer's ankle.
The second style, referenced style name "Lucy", is composed
of a textile upper which features an open heel, a thick jute
platform midsole and a rubber outer sole.
The Protestant claims that style Carmen was improperly
classified by Customs in subheading 6404.19.80, HTSUSA, 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: other:
valued over $6.50 but not over $12/pair. The Protestant argues
that this classification is incorrect because the rubber on the
outer sole merely serves as reinforcement to the jute midsole and
the lace strap serves only as an ornamental feature. The
Protestant further adds that when style Carmen was analyzed by
the independent laboratory, it measured only 8.8 percent by
weight of rubber or plastic.
Similarly, the Protestant claims that style Lucy was
improperly classified by Customs in subheading 6404.19.35,
HTSUSA, 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; 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: other.
The Protestant argues that this classification is incorrect
because when analyzed by an independent laboratory, the shoe
measured only 9.9 percent by weight of rubber or plastic.
Accordingly, the Protestant claims that both style Carmen
and Lucy should be classified in subheading 6405.20.90, HTSUSA,
which provides for other footwear: with uppers of textile
materials: other. In the alternative, classification is proposed
in subheading 6404.19.30, HTSUSA, 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; 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: less than 10 percent by weight of rubber
or plastics: other.
ISSUE:
What is the proper classification of the merchandise at
issue?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, in the order of their appearance.
Classification of goods under chapter 64, HTSUSA, which
provides for footwear, is determined by the materials that
comprise the outer soles and uppers. Note 4(b) to that chapter
provides that:
The constituent material of the outer sole shall be taken to
be the material having the greatest surface area in contact
with the ground, no account being taken of accessories or
reinforcements such as spikes, bars, nails, protectors or
similar attachments.
The Protestant claims that both shoe styles have a jute
outer sole merely reinforced with a layer of rubber; the rubber
serves to "reinforce the jute outer sole primarily at the toe,
heel, and along its perimeter". As further evidence that the
rubber serves merely as reinforcement, the Protestant adds that
when the identical merchandise is sold without the rubber
reinforcement, exposing the jute outer sole, the subject footwear
is considered to have outer soles of textile in accordance with
Note 4(b).
Although Note 4(b) does provide as an exception to the outer
sole having the greatest contact with the ground, any
"accessories or attachments", it similarly defines those terms.
The words "accessories" and "reinforcements" are followed by a
limited number of defining exemplars such as spikes, bars, nails,
protectors or similar attachments. To conclude that by
similitude an entire external surface layer of rubber soling is
included within the meaning of "similar attachments" is not only
unfounded but clearly contradicts the intended meaning of Note
4(b). Following the above cited chapter note, it is apparent
that rubber is the constituent material of the outer sole having
the greatest surface area in contact with the ground. Although
there are several "cut outs" where the jute is exposed, the jute
is sunken relative to the rubber outer sole so that more rubber
will have contact with the ground. See also HQ 088334 dated
March 12, 1991. Furthermore, to add that identical merchandise
sold without the rubber reinforcement is considered to have outer
soles of textile gives further support to our position that the
subject merchandise has rubber outer soles. Merchandise is
classified by Customs on a case by case basis. Shoes such as
these, without rubber outer soles and which expose the existing
jute midsoles would naturally be classified based on the textile
midsoles, which in this case would serve as outer soles. Customs
has consistently classified this type of espadrille shoe with a
jute platform midsole and a heat molded-on rubber wear surface
bottom as footwear with outer soles of rubber or plastics. See
e.g., HQ 953483, dated July 29, 1993. As such, it is our opinion
that the subject merchandise has an outer sole of rubber.
Protestant also claims that the textile fashion lace or
strap on style Carmen merely serves as an ornamental fashion
feature which does not hold the shoe to the foot of the wearer.
In support of this claim reference is made to HQ 073384, dated
December 22, 1983 and HQ 801649, dated November 24, 1981. In HQ
073384, discussing a women's imitation moccasin style casual
shoe, Customs determined that the sample shoe was of the slip-on
type because:
the lace is not a functional fastener noting that it is sewn
down where it passes through both the plug and the collar.
Moreover, we would call this a
slip-on even if the lace were not
sewn down because wearers of this
type of footwear normally tie the
lace once to fit the foot, and then
slip the shoe on and off without
retying the lace.
Unlike the submitted shoe, the shoe of HQ 073384 featured a
non-functioning lace which had been sewn down where it passes
through the collar and the eyelets in the plug. Notwithstanding,
the shoe in question in HQ 073384 was not like the subject
espadrille shoe which encases the foot with a soft textile upper
but a more rigid moccasin style shoe. Thus, the lace strap on
the moccasin could easily be tied once to fit the foot allowing
the moccasin to be slipped on and off without further use of the
lace strap. The same could not be said for the subject
espadrille. The lace strap functions to conform the shoe snugly
to the foot of the wearer. Once this is done, although it might
be possible to slip the shoe off, it would be more difficult to
slip it back on without the textile upper folding into itself
when the foot enters the shoe.
In HQ 801649, discussing a canvas, mock toe, rolled sole
woman's casual shoe, Customs determined that the sample shoe was
of the slip-on type because:
The lace can be tied and untied and by pulling on the lace
ends through the kiltie and by tightly tying them together
(to keep the kiltie from returning to its usual position)
the shoe can be made somewhat tighter around the foot.
However, the effect is limited and rather awkward so we
believe this will rarely be done, almost certainly not each
time the shoe is worn. Therefore, despite the lace, we
consider this a slip-on shoe.
Although the shoe of HQ 801649 has a lace strap which allows
the ends to be tied together to make the shoe tighter around the
foot, the ruling states that its effects are limited and awkward.
Therefore, the presumption is that this unnecessary task will be
often, if not always, skipped when putting on the shoe. As was
discussed above, the design of the subject shoe does not
facilitate this option. The subject espadrille features a lace
strap which is not only functional, but would render the ability
to put on the shoe difficult without the use of the lace strap.
The shoe would easily collapse under the weight of the foot of
the wearer if the lace ends were not consistently readjusted
every time the shoe was worn, regardless of their length. Thus,
although the long lace may have been designed to be wrapped
around the ankle merely for its ornamental appeal, the design of
the shoe requires that the lace be passed around the wearer's
ankle and tied to hold the shoe to the foot. Additionally, it
should be noted that contrary to the Protestant's assertion that
the shoe stays securely on the foot even without the use of the
lace strap, when the submitted shoe was worn by someone in this
office without the use of the lace strap, the shoe slipped off
the wearer's foot. Accordingly, as it is our position that the
submitted sample is not of the slip-on type and that it has a
rubber/plastic outer sole, the shoe does not qualify for
classification within subheadings 6404.19.25 through 6404.19.35,
HTSUSA, where the breakdown of percentage by weight of
rubber/plastic is of relevance.
In regard to percentage by weight of rubber/plastic for
style Lucy, the Protestant disputes the findings of the Customs
laboratory which determined style Lucy to be 10.2 percent by
weight of rubber/plastic. The Protestant submitted a report
prepared by an independent laboratory which determined style Lucy
to be 9.9 percent by weight of rubber/plastic. The fact that an
independent laboratory determined a different result from that of
the Customs laboratory does not change Custom's decision. The
findings of the Customs laboratory will take priority over an
independent laboratory result.
As such, the subject espadrille shoes, referenced style
names "Carmen" and "Lucy", were correctly classified in
subheading 6404.19.80, HTSUSA, and subheading 6404.19.35, HTSUSA,
respectively.
HOLDING:
Style name "Carmen" is classified in subheading 6404.19.80,
HTSUSA, 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: other: valued over $6.50 but not over $12/pair. The
applicable rate of duty is 90 cents/pr. plus 20 percent ad
valorem.
Style name "Lucy" is classified in subheading 6404.19.35,
HTSUSA, which provides for
footwear with outer soles or 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; 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: other. The applicable rate of duty is
37.5 percent ad valorem.
The protest should be denied in full and a copy of this
ruling should be appended to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Branch