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HQ 956569


June 27, 1994

CLA-2 CO:R:C:M 956569 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.20

Mr. Mark Harrison
H.Z. Bernstein Co., Inc.
2975 Kennedy Blvd
Jersey City NJ 07306

RE: Footwear; Sole, external surface area; Applied sole; Socks

Dear Mr. Harrison:

This is in reference to your letter dated May 11, 1994, to the Area Director of Customs in New York, on behalf of R & S Sales Co., Inc, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a nylon sock with leather pieces attached to its bottom. The country of origin of the sock will be China. A sample was submitted for examination.

FACTS:

The sample, identified as style #7000, is a nylon sock with two suede leather pieces stitched to its bottom.

You maintain that this merchandise is properly classifiable under subheading 6115.93.20, HTSUS, which provides for panty hose, tights, stockings, socks and other hosiery, including stockings for varicose veins, and footwear without applied soles, knitted or crocheted, other, of synthetic fibers, other. The applicable rate of duty for this provision is 15.5% ad valorem.

ISSUE:

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

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). 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]."

We consider the two pieces of leather stitched to the bottom of the sock to be an "applied sole." Consequently, the merchandise qualifies for classification as footwear under chapter 64, HTSUS.

Note 4(b) to chapter 64, HTSUS, 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.

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 T.D. 89-80, 54 FR 35127, 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 attached heel) which, when in use, is in contact with the ground . . . .

An examination of the sample sock persuades us that more of the leather will come into contact with the ground than textile, when the sock is worn. Consequently, the sock is classifiable, based on the assumption that it is valued not over $2.50 per pair, under subheading 6404.20.20, HTSUS, which provides for footwear with outer soles of rubber, plastics leather or composition leather and uppers of textile materials, footwear with outer soles of leather or composition leather, not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics.

HOLDING:

The constituent material of the outer sole having the greatest surface area in contact with the ground is leather.

The sock, style #7000, is dutiable at the rate of 15% ad valorem under subheading 6404.20, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division


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