CLA-2 CO:R:C:M 955282 DFC
Erik D. Weiss, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue
New York, NY 10167-0002
RE: Footwear, women's; Espadrille; Open heels; T.D. 93-88;
Dear Mr. Weiss:
This is in reference to your letter dated September 27,
1993, to the Area Director of Customs in New York, on behalf of
E.S. Originals, Inc., concerning the classification under the
Harmonized Tariff Schedule of the United States (HTSUS), of
certain women's footwear which will be imported from China. Your
letter, together with samples of styles N2053-1 and N2283-0, has
been referred to this office for a response. You have also
submitted a supplemental submission to this office dated February
22, 1994, in which additional arguments were presented supporting
your position as to the classification of the footwear.
The tariff classification of style N2053-1 was the subject
of New York Ruling Letter 890980 dated October 22, 1993,
addressed to you.
Style N2283-0, is a woman's espadrille-type shoe, with a two
piece textile upper, a jute faced plastic platform wedge heel, a
jute midsole, and a rubber outsole. The textile upper has a
closed front section which fully encloses the toes, a full back
heel section with a semicircular opening [1 inch x 3/4 inch] at
the bottom of the heel, and an open midsection that has a 1/2
inch wide textile strap which passes through a central loop at
the front and two eyelets on each side of the heel section at the
back. The strap is used to tie the shoe to the foot after it is
wound around the ankle of the wearer.
You maintain that style N2283-0 is dutiable at the rate of
37.5% ad valorem under subheading 6404.19.35, HTSUS, which
provides for footwear with open toes or open heels.
Does style N2283-0 qualify as having an "open heel" for
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.
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 style N2283-0
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.
Style N2283-0 is classifiable under subheading 6404.19.35,
HTSUS, which provides for footwear with outer soles of rubber,
plastics, leather or composition leather and uppers of textile
materials, other, footwear with open toes or open heels, other.
The applicable rate of duty for this provision is 37.5% ad
John Durant, Director
Commercial Rulings Division