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HQ 952745

December 31, 1992

CLA-2 CO:R:C:M 952745 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.90.90; 6402.99.60-90; 6402.99.15

Peter Jay Baskin, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-Seven Broad Street
New York, N.Y. 10004

RE: Footwear; Shoes, bowling; Sole, external surface area: Heel, applied;

Dear Mr. Baskin:

In a letter dated September 1, 1992, on behalf of Dexter Shoe Company, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of three pairs of bowling shoes. In a further submission dated November 13, 1992, you amended your original request to include three additional pairs of bowling shoes.

FACTS:

The samples submitted with your letter of September 1, 1992, consist of three prototype half-pairs of women's bowling shoes designated as styles FBX-10, FBX-20, and FBX-30. The uppers of these styles are made almost entirely of vinyl. The outer soles of the samples are made in part of leather [in the front] and in part of rubber [at the center arch and heel areas]. The most significant difference in the samples is the degree to which the rubber heel lift is raised from the remainder of the outer sole. You state that the additional pairs of bowling shoes designated as styles FBX-11, FBX-21 and FBX-31 are identical in all material respects to the styles represented by the submitted samples, except that the toe and heel bumpers for each of the shoes will have a combined encirclement of less than 39 percent of the perimeter of the shoe.

Your description of the sample shoes and the measurement of the external surface areas of the soles is as follows:

Style FBX-10 features a slightly raised (approximately 1/8 inch) heel lift area (which is not separately attached) of rubber, a leather tap toward the front of the shoe which is generally shaped like an egg except
that the top of the "egg" has been trimmed to allow for a rubber tip on the very front of the shoe, and the balance of the bottom of the shoe being rubber. The leather tap on the prototype extends roughly less than 1/16 inch from the surface to which it is attached. Between the leather tap and the raised heel, covering the arch of the foot, is a rubber-surfaced area with very slightly raised lettering reading "Dexter" along with a registered trademark symbol.

. . . The entire sole has a area of 22.244 square inches. However, a portion of the arch extending from the heel to slightly past the word "Dexter" measuring 3.0397 square inches in area, does not come in contact with the ground when the shoe is in use. Therefore, the entire area of the sole which comes in contact with the ground when the shoe is in use measures 19.2043 square inches. Of that, the heel constitutes 5.5573 square inches, the tap measures 9.5501 square inches, the rubber tip (at the front of the shoe) is 0.7949 square inches [sic], and the forward portion of the arch which does come into contact with the ground when the shoe is in use (hereinafter, the "forepart") measures 3.3017 square inches.

Style FBX-20 is a flat-bottomed shoe whose outer sole consists entirely of rubber except for a patch of leather which is shaped and situated on the sole similarly to the leather tap on FBX-10. . . . the outer sole has an area of 21.7895 square inches, of which 9.6242 square inches consists of leather. As for the rubber portions of the sole, the heel area measures 5.5713 square inches, the rubber tip is 0.6097 square inches [sic], the rubber tip is 0.6017 square inches [sic], and the arch area (all of which comes into contact with the ground when the shoe is in use) measures 5.9837 square inches.

Style FBX-30 is similar to the style FBX-10 except that the back of the leather tap has been trimmed, thereby exposing more rubber on the surface of the outer sole. The outer sole of the shoe measures 22.0400 square inches, but the portion of the arch not coming into contact with the ground when the shoe is in use equals 3.0144 square inches. That leaves a total of 19.0256 square inches of surface area which touches the ground when the shoe is in use, which is comprised of the leather tap (8.3187 square inches), the heel-lift area (5.54301 square inches), the rubber tip (0.6848 square inches [sic]), and the forepart (4.4801 square inches).

You claim that the three styles represented by the samples plus the styles that were included in your amendatory request of November 13, 1992, are properly classifiable under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather), other.

ISSUE:

What is the constituent material of the outer soles of the bowling shoes?

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.

Note 4(b) to chapter 64, HTSUS, which is relevant here reads as follows:

4. Subject to note 3 to this chapter:

(b) 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.

You have calculated the constituent material of the outer soles of the sample styles as follows:

External Surface Area (Sq. in.)

Leather Rubber

FBX-10
Heel 5.5573
Tap 9.5501
Tip 0.7949
Forepart 3.3017

Totals 9.5501 9.6539

Leather Rubber

FBX-20
Heel 5.5713
Tap 9.6242
Tip 0.6097
Arch 5.9837

Totals 9.6242 12.1647

FBX-30
Heel 5.5401
Tap 8.3187
Tip 0.6848
Forepart 4.4801

Totals 8.3187 10.7050

Based on the above measurements you assert that for each of the three styles, rubber predominates over leather in surface area of the outer sole in contact with the ground.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35128 (August 23, 1989). General EN (C) to Chapter 64, HTSUS, provides in pertinent part on page 874, as follows:

(C) The 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. . . .

You point out that the heels on the sample footwear are not attached heels, but are molded as an inseparable part of the outer soles. We consider the "heel lift" area to be part of the outer sole because, even though it is quite distinct and looks like a thin "applied heel," it is actually the same molded piece as the rubber "forepart," "tip" and secondary midsole under the leather.

The "forepart" is that part of the general arch area which you claim is the part which "comes into contact with the ground in use." While some percentage of the area between the heel and the raised leather outer sole will come in contact with the ground, albeit relatively "soft" contact, it appears that most of that area will not come into contact with the ground, and thus is not considered a part of the outer sole. It appears that the drafters of the tariff schedule did not intend when writing note 4(b) to Chapter 64, HTSUS, that one sub-area of a constituent material would be "outer sole" and that another would not. A general "all or nothing" approach is implied by their language. As a practical matter, this approach does avoid the almost impossible task of trying to determine exactly which areas will be "in contact with the ground" since this obviously depends upon a number of variables (e.g., weight and gait of the wearer, shape of the wearer's foot, rigidity of the ground, etc).

The "forepart" is a part of the piece which is a "bumper" around the toes and partly under the front edge of the midsole. The area, about 1/8 inch wide, which is horizontal is recessed compared to the leather sole, so even some of that horizontal surface will clearly never be in contact with the ground. This "bumper" gradually curves up to the vertical. All or part of that curve up would come into contact with the bowling lane depending on the bowler's style. However, it is apparent that especially in athletic footwear not all areas that come in contact with the ground are part of the outer sole. For example, many textile tennis shoes have a rubber insert covering the fabric above the front of the toes since many tennis players drag the front of their foot across the ground just after serving the ball. Thus, it is obvious that the rubber piece on top of the toes is not part of the area of the outer sole under the HTSUS. Likewise, here it is our view that the "forepart" is not part of the outer sole because it is basically a "bumper" even though some of it, some of the time, will be in contact with the ground.

When we exclude the forepart area of styles FBX-10, FBX-11, FBX-30 and FBX-31 from measurement as external surface area of the sole, the constituent material of the outer sole having the greatest surface area in contact with the ground is leather.

Consequently, women's styles FBX-10, FBX-11, FBX 30 and FBX-31 are classifiable under subheading 6405.90.90, HTSUS, as other footwear, other, other.

The sample of women's style FBX-20 is constructed differently than the samples of styles FBX-10 and FBX-30 in that the leather "tap," the heel "lift" and the area in between are all on the same plane. Thus, it is apparent that the material with the greatest surface area in contact with the ground will be rubber. However, an examination of the sample reveals that there is an overlap of the upper by the sole of over 1/4 inch around 45% of the perimeter of the shoe. The overlap on the instant shoe functions as a foxing band and has the appearance of foxing since all or most of the 1/4 inch overlap is visible noting that it is at the front, the outside, and the back of the shoe. See T.D. 92-108, 26 Cust. Bull. 48. (1992).

In view of the foregoing, it is our position that style FBX- 20 possesses a foxing-like band which mandates its classification under subheading 6402.99.60-90, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other, other, with duty at a rate depending on value per pair.

You have informed us that style FBX-21 will be made in men's and women's sizes. You have provided samples of the outer soles of style FBX-21 in both men's and women's sizes along with diagrams of the outer soles showing the relative areas of leather and rubber. The diagram of style FBX-21W shows that the constituent material of its outer sole having the greatest surface area in contact with the ground is rubber [45.9% leather to 54.1% rubber]. That diagram also shows that the sole overlaps 36% of the perimeter of the shoe. The diagram of style FBX-21M shows that the constituent material of its outer sole having the greatest surface area in contact with the ground is rubber [47.7% leather to 52.3% rubber]. That diagram also shows that the sole overlaps 36.5% of the perimeter of the shoe. It has been the position of the Customs Service that an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute foxing or a foxing-like band. See T.D. 92-108, 26 Cust. Bull. 48. (1992). Consequently, style FBX-21 in men and women's sizes is classifiable under subheading 6402.99.15, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and
except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather), other.

HOLDING:

Styles FBX-10, FBX-11, FBX-30 and FBX-31 are classifiable under subheading 6405.90.90, HTSUS.

Style FBX-20 is classifiable under subheading 6402.99.60- 90, HTSUS.

Style FBX-21 in men and women's sizes is classifiable under subheading 6402.99.15, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division


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See also:

• Tariff No.: 6402.99.60 - Footwear w/outer soles & uppers of rubber or plastics, nesoi, n/cov. ankle, nesoi, valued n/o $3/pair
• Tariff No.: 6405.90.90 - Footwear, nesoi, w/outer soles and uppers other than of rubber/plastics/leather/comp. leather/textile materials