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