HQ 951328: Protest No. 3701-92-100013; footwear; Subheading 6404.19.25; HQ 088334

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 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