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HQ 088179


February 5, 1991

CLA-2 CO:R:C:M 088179 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.60

John M. Peterson, Esq.
Neville, Peterson & Williams
Counsellors At Law
39 Broadway
New York, New York 10006

RE: Sole, outer, leather

Dear Mr. Peterson:

In a letter dated October 11, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a leather outer sole.

FACTS:

You describe the merchandise as follows:

The merchandise in question is a leather outersole designed for use in the manufacture of footwear, particularly house slippers. It is manufactured in the Republic of the Philippines. The outersole is made from a pigsplit leather and measures approximately 10-1/4 inches in length, and ranges from 2-1/2 to 3-1/2 inches in width. The underside of the sole features a series of expanded rubber "traction dots" arranged in a diagonal pattern. The dots measure approximately one eighth of an inch in diameter, and are spaced approximately 3/32 of an inch apart (measured diagonally).

The traction dots are printed onto the underside of the outersole in two section. The front section of traction dots begins approximately three-quarters of an inch from the front tip of the outersole, and measures approximately 4-1/4 inches in length and 3-1/8 inches in width at its widest point. After a gap of approximately 1/4 inch in length, a second section of traction dots, arranged in the same diagonal pattern, runs approximately 4-1/4 inches in length and 2-1/2 inches in width, stopping approximately one inch from the rear of the heel area of the outersole.

It is our observation that the plastic dots actually vary substantially in diameter from 1/8 inch to 50 percent more, i.e., 3/16 inch. Because of the different size of the dots, the spacing between their edges varies substantially. Thus, the statement that the dots "are spaced approximately 3/32 inch apart (measured diagonally)" is rather meaningless. It is true that the dots are (measured on center), 1/5 inch apart along the diagonals and from front to back and 3/8 inch apart from side to side

ISSUE:

What is the constituent material of the sole having the greatest surface area in contact with the ground?

LAW AND ANALYSIS:

In applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA 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.

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 "[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."

Customs does not consider these rubber traction dots to be excludable as accessories or reinforcements because they do not resemble the exemplars in Note 4(b) to Chapter 64, HTSUSA. Therefore, the traction dots are part of the material of the outer sole and they must be considered in determining the composition of the outer sole.

A laboratory analysis of the sample leather outer sole reveals that rubber dots cover a maximum of 38 percent of the external surface area of the sole. This information of itself is not conclusive that more leather material is in contact with the ground than rubber. However, it is our observation that the leather is soft and flexible and under the weight of a wearer the rubber dots would not prevent the leather material in its totality from being in contact with the ground. Thus, it is our opinion in this instance that more leather would be in contact with the ground than rubber.

HOLDING:

The leather outer sole is classifiable under subheading 6406.99.6000, HTSUSA, as parts of footwear, other, of other materials, of leather, with duty at the rate of 5 percent ad valorem.

Sincerely,

John Durant, Director

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