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HQ 955704


March 9, 1994

CLA-2 CO:R:C:M 955704 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.25

R. Patrick Doyle
Manager, Traffic Administration
Thom McAn Shoe Company
67 Millbrook Street
Worcester, MA 1606-2804

RE: Footwear, Women's; Espadrille; Open heels; T.D. 93-88 HRL 955282

Dear Mr. Doyle:

This is in reference to your undated letter to the District Director of Customs in Boston, Massachusetts. concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a woman's espadrille produced in Spain. Your letter, together with the sample submitted, has been referred to this office for a response.

FACTS:

The sample shoe, style name "Valenciana," identified by stock numbers 77203 and 77204, has a vegetable fiber textile upper, a predominately rubber outsole, a jute rope midsole and a jute rope faced, composition cork heel wedge. 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 1-1/4 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 at the back. The strap is used to tie the shoe to the wearer's foot at the ankle. The shoe is less than 10% by weight of rubber or plastics.

ISSUE:

Does style "Valenciana" 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 6404.19.25, 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, less than 10 percent by weight of rubber or plastics, with uppers of vegetable fibers.

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 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 "Valenciana" 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 "Valenciana" is dutiable at the rate of 7.5% ad valorem under subheading 6404.19.25, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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