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HQ 955345


March 9, 1994

CLA-2 CO:R:C:M 955345 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35

Ms. Patti Kniest
Customs Specialist
Edison Brothers Stores, Inc.
501 N. Broadway
P.O. Box 66995,
St. Louis, Mo. 63166-6649

RE: Footwear; Women's; Espadrille; Open heels; HRL 955282

Dear Ms. Kniest:

This is in reference to your letter dated October 7, 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 of shoe produced in Spain. Your letter, together with the sample footwear, was referred to this office for a response.

FACTS:

The sample shoe, identified as style "Valencia", has a vegetable fiber textile upper, a rubber outsole and a thick, jute rope midsole. The textile upper has a closed front vamp section which fully encloses the toes, a full back heel section with a semicircular opening [1/2 inch high by 1-1/2 inch wide] at the bottom of the heel, and an open midsection that has a 5/8 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 wearer's foot. This shoe appears to be over 10% by weight of rubber or plastics

ISSUE:

Does style "Valencia" 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 6404.19.35, 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.

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 "Valencia" 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, which reached the same conclusion on similar footwear.

HOLDING:

Style "Valencia" qualifies as having an "open heel" for tariff purposes.

Style "Valencia" is dutiable at the rate of 37.5% ad valorem under subheading 6404.19.35, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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