CLA-2 RR:CR:TE 962500 gah
Mr. Leonard L. Rosenberg, Esq.
Sandler, Travis and Rosenberg
5200 Blue Lagoon Drive
Miami, Fl 33126-2022
RE: Ruling request for women’s slip-on shoe with rubber traction dots ; HQ 081588, dated July 11, 1988
Dear Mr. Rosenberg:
This is in regard to your letter of December 17, 1998, requesting a prospective ruling on the classification of a women’s shoe. Your views expressed at a meeting on May 18, 1999 with staff are also considered in this response.
FACTS:
The shoe is a women’s pump with a leather upper, a wood heel with a plastic cap and a leather sole. The leather sole has 41 rubber dots inserted through holes in the leather. These dots range from one-fifth to one quarter of an inch in diameter. The footwear carries the model name of “Tammy” and is produced in Spain for Stuart Weitzman and Company.
ISSUE:
Are rubber traction dots within the meaning of chapter 64 note 4(b) attachments to the outer sole, and therefore excluded from consideration in determining the constituent material of the outer sole?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation
(GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative legal notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
Chapter 64, note 4(b) states 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 Explanatory Notes (EN) to the chapter indicate that the outer sole is that part of the footwear which, when in use, is in contact with the ground. An attached heel is not included when considering the portion of the shoe which contacts the ground.
You argue that the rubber traction dots on the sole are functionally similar to the note 4(b) exemplars such as spikes, and therefore that they should be excluded from consideration when determining the constituent material of the outer sole. Moreover, if such accessories and reinforcements must be attached to the outer sole to be within the scope of note 4(b), attachment should be construed to include attachments to the inside of the outer sole, where the attachment comes through to the outer surface of the outer sole. You believe that rubber traction dots provide traction and protection when surfaces are slippery, and the note 4(b) exemplars function in the same way. Further, you believe that rubber traction dots meet the common and commercial meaning of the terms accessory or reinforcement, and except for HQ 081588 of July 11, 1988, Customs has too narrowly interpreted note 4(b).
The primary text at issue in note 4(b) to chapter 64, having the greatest surface area in contact with the ground, requires consideration of the outer surface of the outer sole because those materials alone are in contact with the ground. In furtherance of the legal requirement, EN (C) to chapter 64 adds that attached accessories or reinforcements should be disregarded which partly cover the sole. We interpret this guidance to mean that all of the exemplars described as accessories or reinforcements cover outer sole material. Such attachments would only be in issue if they were covering material that would otherwise contact the ground. As an example, the EN mentions an attached heel. When taken together, note 4(b) and EN(C) indicate that the focus of the constituent material determination is the outer sole itself, and the outer surface of the outer sole. Only if accessories and reinforcements are attached to the outer surface of the otherwise complete outer sole does the focus turn to whether they function as an accessory or reinforcement to the outer sole.
The traction dots are attached in the form of a piece of rubber, roughly four and one half inches by two and one half inches in the center of the front half of the outer sole, on the inside of the outer sole. Of course, this is not visible on the finished shoe. What is visible on the outside of the outer sole are round holes in the sole through which the rubber dots, numbering 41, protrude. Applying the legal standard and the EN guidance discussed above, the rubber traction dots are not attached to the outer surface of the outer sole. Stated another way, the dots do not cover outer sole material. Rather, they form part of the complete outer sole’s outer surface and are not excluded from the constituent material determination. The rubber is the constituent material having the greatest surface area when the outer sole is in contact with the ground.
Heading 6403 covers merchandise footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather. Within the meaning of note 4(b), heading 6403 describes the instant merchandise. Subheading 6403.99 covers other footwear, not covering the ankle, and captures these goods, as footwear with uppers of leather and outer soles of rubber.
We decline to construe whether the rubber traction dots are similar in function or otherwise to the enumerated accessories or reinforcements because the rubber traction dots are not attachments. The tariff meaning of the scope of the constituent material of the outer sole is clear from legal note 4(b). Your comparison of the accessories and reinforcements as enumerated in legal note 4(b) to the text of subheading legal note 1 is misplaced. Moreover, subheading legal note 1 is not in issue. HQ 081588 will be reviewed to determine what, if any, action is required to bring that decision in line with other Customs rulings.
HOLDING:
Model “Tammy” women’s shoe is classified in subheading 6403.99.90, HTSUS, which provides for footwear for women with outer soles of rubber and uppers of leather and valued over $2.50 per pair, and is dutiable at 10 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division