HQ 958549: 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 protectoror attachment; lace strap serves a functional purpose; shoe isnot of a slip-on type

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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,





                              John Durant, Director
                              Tariff Classification Appeals
Branch