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HQ 958549




March 6, 1996

CLA-2 RR:TC:TE 958549 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 6404.19.80

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. 1001-95-105852; women's espadrille; Note 4(b) to Chapter 64, HTSUSA; heat molded-on rubber outer sole is not a protector or attachment; lace strap serves a functional purpose; shoe is not of a slip-on type

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Nine West Distribution Corp., on July 6, 1995, against your decision regarding the classification of women's espadrille shoes. All entries were liquidated on April 7, 1995. A sample was provided to this office for examination.

FACTS:

The merchandise at issue is a women's espadrille shoe, referenced style name "Mogul", which consists of a textile upper which features a closed toe and heel, a wedge shaped jute platform midsole and a rubber outer sole. 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; 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 Protestant claims that the shoe 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 the rubber on the outer sole merely serves as reinforcement and that accordingly, style Mogul should be classified in subheading 6405.20.30, HTSUSA, which provides for other footwear; with uppers of textile materials: with uppers of vegetable fibers. In the alternative, the Protestant argues that the lace strap is an ornamental feature which does not significantly hold the shoe to the foot of the wearer and that the shoe is held to the foot by the close fitting design of the upper. Accordingly, classification is proposed in subheading 6404.19.25, 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: with uppers of vegetable fibers.

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's first claim states that the subject shoe has 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, he 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). The rubber soling on the subject merchandise does not merely "reinforce" the toe, heel and the perimeter of the shoe. To the contrary, the rubber completely covers the jute bottom of the shoe and acts as a rubber outer sole. 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 outersoles. 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, and cannot be classified in heading 6405, HTSUSA.

Protestant's second claim states that the textile fashion lace or strap 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 without the use of the lace strap, the shoe slipped off the wearer's foot. Accordingly, it is our position that the submitted sample is not of the slip-on type and that it has a rubber/plastic outer sole.

HOLDING:

The subject espadrille shoe, referenced style name "Mogul", was correctly 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 perecent 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,


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