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HQ 953483


July 29,1993

CLA-2 CO:R:C:M 953483 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.25

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

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