Protest No. 3701-92-100013; footwear; Subheading 6404.19.25; HQ 088334

HQ 951328 June 2, 1992 CLA-2 CO:R:C:M 951328 EJD CATEGORY: Classification TARIFF NO: 6404.19.35 District Director of Customs U.S. Customs Service P.O. Box 37260 Milwaukee, Wisconsin 53237-0260 RE: Protest No. 3701-92-100013; footwear; Subheading 6404.19.25; HQ 088334 Dear Sir: This is in response to the Application for Further Review of Protest No. 3701-92-100013, dated February 6, 1992, which pertains to the tariff classification of 3 styles of footwear under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The footwear at issue is three styles of women's espadrilles from Spain. The first pair, "Basque", is a women's slip-on shoe with a red canvas upper and a jute and rubber outer sole. The second pair, "Blace", is a women's slip-on shoe with a white canvas upper that is decorated with colored dots and silver-tone studs. The shoe has a jute and rubber outer sole. The third pair, "Camping", is a women's slip-on shoe with a black canvas upper and a jute and rubber outer sole. The entries were liquidated under subheading 6404.19.35, HTSUS, which provides for "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials...[f]ootwear with outer soles of rubber or plastics... [o]ther...[o]ther." The protestant contends that the footwear is classifiable as entered under subheading 6404.19.25, HTSUS, which provides for "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials...[f]ootwear with outer soles of rubber or plastics... [o]ther...[l]ess than 10 percent by weight of rubber or plastics ...[w]ith uppers of vegetable fibers." The protestant cites to a 1988 Spanish laboratory report for one style of footwear done by the supplier. However, the style number did not correspond to the current styles which were listed on the entries in question and the lab analysis is dated more than 2 years before the entries were made. It is our position that this report should not be given any weight in our consideration of the case. The protestant provided another sample, a red slip-on espadrille, but did not provide any evidence that it was representative of the entries in question. All three styles of women's espadrilles were sent to a Customs Laboratory for analysis of their material components. All three laboratory reports reflect that the amount of rubber or plastics materials in each style is over 10% by weight. ISSUE: What is the proper classification of the three styles of footwear under the HTSUS? LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." 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, HTSUS, which provides for footwear, is determined by the materials 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 Commodity Description and Coding System (HCDCS) at the international level. EN (C) to Chapter 64 at p. 874, 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...." The Explanatory Notes, although not dispositive, are to be looked to for the interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 24, 1988). Following the above-cited chapter note, it is apparent that rubber is the constituent material of the outer sole of the espadrilles having the greatest surface area in contact with the ground. It is noted that in Headquarters Ruling Letter (HQ) 088334, dated March 12, 1991, other styles of espadrilles from Spain were found to be over 10 percent by weight of rubber and plastics and were classified under subheading 6404.19.35, HTSUS. Sample shoes were examined by the Chicago Customs Laboratory for a determination of the various weights of the shoes' constituent components. The results are as follows: Customs laboratory report, 3-91-20775-001, dated July 12, 1991, provided the following results: Basque Espadrille Components % By Weight Textile materials 85 Rubber or plastics 15 Customs laboratory report, 3-91-20776-001, dated July 12, 1991, provided the following results: Blace Espadrille Components % By Weight Textile materials 88 Rubber or plastics 12 Customs laboratory report, 3-91-20774-001, dated July 12, 1991, provided the following results: Camping Espadrille Component % By Weight Textile materials 89 Rubber or plastics 11 Based on the Customs laboratory reports and considering the chapter notes and ENs, the footwear represented by the samples are classifiable under subheading 6404.19.35, HTSUS, as footwear with outer soles of rubber or plastics over 10 % by weight of rubber or plastics. HOLDING: Basque, Blace and Camping Espadrilles are classified in subheading 6404.19.35, HTSUS. The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest. Sincerely, John Durant, Director Commercial Rulings Division