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HQ 957508




March 7, 1995

CLA-2 CO:R:C:M 957508 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.90.90

Mr. Adonis Rawlins
Operations Manager
Mavade Footwear
30467 Beck Road
Wixom, Michigan 48393

RE: Footwear; Shoes, bowling; Sole, external surface area: Textile materials; HRL 952745; DD 800938 and NYRL 803238 affirmed

Dear Mr. Rawlins:

In a letter dated December 28, 1994, you asked that District Ruling (DD) 800938 issued on August 22, 1994, by the District Director of Customs, at New Orleans, and New York Ruling Letter (NYRL) 803238 issued November 10, 1994, by the Area Director of Customs, New York Seaport, to E. C. McAfee Co., on your behalf, be revoked. These rulings concerned the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain bowling shoes produced in China. Samples were submitted for examination.

FACTS:

The two samples, designated as styles "Cyclone II (58- 109427)" and "Dart Too (58-109429)" are both low-cut lace up bowling shoes with plastic uppers and padded ankle collars and tongues. The soles of both pairs of shoes are rubber. However, both the left and right shoe of each pair have synthetic suede sliding pieces stitched over the rubber and covering all the front part of the sole.

In DD 800938 and NYRL 803238, Customs ruled that the sample footwear described above, except that only one shoe of each pair had a "sliding piece" outer sole, was classifiable under subheading 6405.90.90, HTSUS, which provides for other footwear, other, other.

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 (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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Note 3 to chapter 64, HTSUS, reads, as follows:

3. For the purposes of this chapter, the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials.

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 . . . .

You maintain that the sample bowling shoes are classifiable under subheading 6402.99.15, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, 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, other. The applicable rate of duty for this provision is 6% ad valorem.

The rationale for your claimed classification under subheading 6402.99.15, HTSUS, depends on plastic being the constituent material of the outer sole having the greatest surface area in contact with the ground. It appears to be your position that the "synthetic suede sliding pads" are a plastic material. The laboratory analysis you have attached dated December 24, 1994, from Hyung Tong Industry Co., Ltd., Korea states, "Sliding Piece Composition Non Woven Fabric, P.U. impregnated."

General EN's (E) and (F) to chapter 64, at page 875, which are relevant here, read as follows:

(E) It should be noted that for the purposes of this Chapter, the expression "rubber or plastics" includes any textile material visibly coated or covered externally with one or both of those materials, which means that the coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour.

(F) Subject to the provisions of (E) above, for the purposes of this Chapter the expression 'textile materials' covers the fibres, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60.

The P.U. impregnated synthetic suede material, if imported in rolls, would probably be classifiable under heading 5903, HTSUS, which provides for textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902. Note 3 to Chapter 64, HTSUS, does not apply because the fibers are clearly visible all over the external surface of the sliding pads. Thus, following General EN F to Chapter 64, HTSUS, the pads are of textile material.

You have cited HRL 952745 dated December 31, 1992, as authority for your contention that the "synthetic suede sliding pads" in issue are plastic. In that ruling bowling shoe style FBX-21, in men's and women's sizes, was classified under subheading 6402.99.15, HTSUS, as having outer soles of rubber or plastics. However, it should be noted that all the styles in issue in HRL 952745 had "sliding pads" of leather so, it has nothing to do with your claim that your "sliding pads" are plastic. Further, HRL 952745 does not help your position in that the styles in issue are more like styles FBX-10,11,30 and 31, ruled on therein, in that the constituent material of the outer soles having the greatest surface area in contact with the ground
was leather, thus mandating classification under subheading 6405.90.90, HTSUS.

HOLDING:

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

Styles "Cyclone II (58-109427) and Dart Too (58-109429) are dutiable at the rate of 12.5% ad valorem under subheading 6405.90.90, HTSUS. This classification would be applicable whether one or both of the shoes in a pair have the "sliding piece."

DD 800938 and NYRL 803238 are affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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