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HQ 088334




March 12, 1991

CLA-2 CO:R:CM 088334 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.35; 6404.19.70

Ms. Evelyn Tenoria
Sam & Libby, Inc.,
1123 Industrial Road
Suite C,
San Carlos, California 94070

RE: Espadrille

Dear Ms. Tenorio:

In an undated letter which was received by this office on November 29, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an espadrille manufactured in Spain. A sample was submitted for examination.

FACTS:

The sample espadrille has an all cotton canvas upper and the sole is composed of rubber except for the jute panels on the sole. There is jute covering the sidewall of the espadrille and the sock is made up of the same jute with a Sam & libby or Gap logo on a nylon-type material which is glued on to the sock (jute).

Several style names are mentioned in your letter and it is not clear which of these, if any, is the submitted sample. However, all styles are produced by Polo Y Guerrero in Murcia, Spain with, the same rubber outer sole.

ISSUE:

What is the constituent material of the sole having the greatest surface area in contact with the ground?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA 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.

Classification of goods under Chapter 64, HTSUSA, which provides for footwear, is determined by thematerials that comprise the outer soles and uppers. Note 4(b) to that chapter provides that "[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, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments."

The Explanatory Notes (EN) are the official interpretation of the Harmonized System at the international level. EN (C) to Chapter 64 provides in pertinent part that " [t]he term outer sole' as used in headings 64.01 to 64.05 means that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground...."

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 extensive "cut outs" where the jute is exposed, the jute is sunken relative to the rubber outer sole which was placed on it so that little of it will be in contact with the ground.

It should be noted that we have not excluded the back (rear) area from the external surface of the outer sole. We do not consider it to be an "attached heel" as used in EN (c) to Chapter 64, HTSUSA, supra. It is part of the same sheet of rubber as the rest of the outer sole. It has been pushed into the jute only to a slightly lesser degree since its "bottom" surface is only about 1/16 inch lower than the rubber of the outer sole just forward of it. A difference of only 1/16 inch is, of course, not at all common in a "separate heel." Even thicker rubber items (about 1/8 inch thick) used as the bottom of high heels are called "lifts," not "heels."

You indicate that the sample is less than 10 percent by weight of rubber and plastics. It is our observation that the sample is well over 10 percent by weight of rubber and plastics. Consequently, footwear represented by the sample is classifiable under subheading 6404.19.35, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, footwear of the slip-on type, that is held to the foot without the use of laces of buckles or other, other.

On the assumption that they have rubber outer soles, the remaining styles with the exception of "Kids Siesta" and "Garden Grown" are also classifiable under subheading 6404.19.35, HTSUSA.

The "Kids Siesta" which has "2 cotton straps which tie up the ankle," and the "Garden Grown" which has an "ankle strap," are precluded from classification under subheading 6404.19.35, HTSUSA, due to the presence of "other fasteners." From the information provided by you, it appears that neither of these two styles has an open toe or an open heel. Therefore, these two styles are classifiable under subheading 6404.19.70, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, other.

HOLDING:

Styles "Kids Siesta" and "Garden Grown" are dutiable at the rate of 37.5 percent plus $.90 per pair under subheading 6404.19.70, HTSUSA.

The sample espadrille and the remaining styles are dutiable at the rate of 37.5 percent ad valorem under subheading 6404.19.35, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division


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