HQ 955804

March 9, 1994

CLA-2 CO:R:C:M 955804 DFC

CATEGORY: Classification

TARIFF NO.: 6404.19.25

Andrew S. Harris CHB

604 Merrick Road

Lynbrook, NY 11563

RE: Footwear, women\'s; Espadrille; Open heels; T.D. 93-88;

HRL 955282

Dear Mr. Harris:

This is in reference to your letter dated October 21, 1993,

to the Area Director of Customs in New York, on behalf of Buckray

Inc., concerning the tariff classification under the Harmonized

Tariff Schedule of the United States (HTSUS) of a woman\'s

espadrille type shoe produced in Spain. Your letter, together

with the sample submitted, has been referred to this office for a

response.

FACTS:

The sample shoe, identified as style \"Valenciana\", has a

vegetable fiber textile upper, rubber outsole \[the material

mostly in contact with the ground\] and a thick jute rope midsole.

The textile upper has a closed front vamp section which fully

encloses the toes, a full back heel section with a trapezoidal

shaped opening \[approximately 3/4 inch high by 1-1/4 inch wide\]

at the bottom of the heel, and an open midsection that has a 5/8

inch wide textile strap which passes through a central loop at

the front and two eyelets on each side of the heel at the back.

The strap is used to tie the shoe to the wearer\'s foot. It is

assumed that the shoe contains less than 10% by weight of rubber

or plastics based on the weight breakdown submitted.

ISSUE:

Does style \"Valenciana\" qualify as having an \"open heel\" for

tariff purposes?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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.

Subheading 6404.19.25, HTSUS, 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,

less than 10 percent by weight of rubber or plastics, with uppers

of vegetable fibers.

According to our research, the question of how large an

opening or how much of the heel needs to be uncovered to classify

a shoe as having \"open heels\" has not been previously addressed.

The HTSUS and the Harmonized Commodity Description and Coding

System Explanatory Notes (EN) provide no answers to this

question. However, on November 17, 1993, in T.D. 93-88 (27 Cust.

Bull. & Dec. No. 46), Customs published certain footwear

definitions used by Customs import specialists in classifying

footwear under Chapter 64, HTSUS. Inasmuch as these definitions

were provided merely as guidelines and are not to be construed as

Customs rulings, they are not dispositive. However, we believe

they should be consulted. On page 6 of that document the term

\"Open\" was defined in pertinent part, as follows:

. . .\[i\]n open heeled shoes, all or part of the back of the

wearer\'s heel can be seen.

Following this definition, it is our view that style

\"Valenciana\" qualifies as having an \"open heel\" for tariff

purposes. It is our observation that part of the back of the

wearer\'s heel will be visible through the opening at the bottom

of the heel. See Headquarters Ruling Letter 955282 dated March

4, 1994, in which this office reached the same conclusion on

similar footwear.

HOLDING:

Style \"Valenciana\" is dutiable at the rate of 7.5% ad

valorem under subheading 6404.19.25, HTSUS.

Sincerely,

John Durant, Director

Commercial Rulings Division