CLA-2 RR:CR:TX 962713 gah
Mr. Paul Caterina
Bally Incorporated
One Bally Place
New Rochelle, NY 10801
RE: Revocation of HQ 081588; classification of shoe with embossed plastic upper, leather linings and trim, and leather sole with rubber plug inserts.
Dear Mr. Caterina:
This is in regard to HQ ruling (HQ) 081588 that was issued to you on July 11, 1988, which addressed the tariff classification of a women’s shoe under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed this ruling in light of HQ 962500 dated June 16, 1999 and have determined that HQ 081588 is incorrect. Therefore, this ruling revokes HQ 081588 and sets forth the correct classification for the shoe.
FACTS:
The merchandise is a women's closed toe, closed back slip on with an embossed plastic upper, leather trim collar, and leather tassels across the vamp. The shoe has a 1/2 inch wood wedge, rubber heel, and a leather sole with 14 rubber plugs inserted through holes in the leather. Each of the rubber plugs is approximately 1/4 inch in diameter and 1/8 inch thick, with about 1/32 of an inch projecting beyond the surface of the leather sole.
Customs classified the shoe in subheading 6405.90.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other footwear.
ISSUE:
Are the rubber plugs, sometimes known as 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.
In HQ 962500 we considered whether or not traction dots on an outer sole are functionally similar to the note 4(b) exemplars such as spikes, and therefore excluded from consideration when determining the constituent material of the outer sole. It was argued that rubber traction dots provide traction and protection when surfaces are slippery, and that the note 4(b) exemplars function in the same way. A comparison was drawn between the accessories and reinforcements as enumerated in legal note 4(b) to the text of subheading legal note 1.
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.
In the instant shoe, the traction dots protrude though holes in the leather of the outer sole. 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. 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. Subheading legal note 1 defining sports footwear is not in issue.
Heading 6402 covers other footwear with outer soles and uppers of rubber or plastics. Heading 6405 covers other footwear. Within the meaning of note 4(b), the shoe has an upper of plastics and an outer sole of rubber. Therefore, heading 6402 describes the merchandise.
HOLDING:
The instant shoe is properly classified in subheading 6402.99.3060, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, footwear of the slip-on type, for women. The rate of duty is 37.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division