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NY F87041




May 22, 2000

CLA-2-64:RR:NC:TA:347 F87041

CATEGORY: CLASSIFICATION

TARIFF NO. 6404.20.40

Mr. Roger Crain
Customs Science Services, Inc.
11901 Reynolds Avenue
Potomac, MD 20854-3321

RE: The tariff classification of footwear made in Brazil.

Dear Mr. Crain:

In your letter dated May 11, 2000 you requested a classification ruling on behalf of Report Footwear, for an item that you identify as Canyon River Blues (Style No.BW4100).

You describe the Canyon River Blues (Style No. BW4100) as an adult’s wood platform sandal. You state that it has a woven textile upper, a leather outer sole with two large rubber/plastic plugs at the ball and arch, a wooden platform midsole, an open toe and heel and is of the slip-on type.

You explain that the outer sole is mostly flat but turns upward at a point about 7 centimeters in from the toe and again about 4 centimeters in from the heel. The platform being rigid, the upward-turning toe and heel are not in contact with a flat surface on which the shoe rests. Therefore, in determining the material of the outer sole in accordance with Note 4(b) to Chapter 64, Harmonized Tariff Schedule of the United States (HTS), you disregarded the up-turned parts of the sole that are not in contact with the ground. You found that the material of the outer sole having the greatest area in contact with the ground is 53 percent rubber/plastic and 47 percent leather. In this regard, you believe that the shoe has a rubber/plastic outer sole for tariff classification purposes. You ask that in addition to providing the applicable HTS subheading for this shoe, we also comment on the correctness of your decision to disregard the upward-turning portions of the outer sole in your surface measurement.

As you know, Note 4(b) to chapter 64 (HTS), provides that the constituent material of the outer sole shall be taken to be the material having the greatest surface 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 HTS should also be looked to for the proper interpretation of the HTS. General EN (C) to Chapter 64 provides 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. While true that certain portions of outer soles will never come in contact with the ground (i.e. the area just forward of raised heels) and are not included as surface area, as a general rule, we include all material which will contact the ground “when in use” whether while standing or striding. We believe that the term “when in use” connotes more than a stationary position for the sole. Therefore, we disagree with your decision to exclude the upward-turning portions of the outer sole when calculating the external surface area in contact with the ground. It is the opinion of this office that the constituent material of the outer sole having the greatest surface area in contact with the ground for Canyon River Blues (Style no. BW4100) is leather.

You have provided a lab analysis indicating that rubber/plastic comprises 9.5 percent by weight of this shoe. This ruling is being issued based upon the validity of this information. The weight of the constituent materials of the shoe may be verified at the time of importation.

The applicable subheading for Canyon River Blues (Style No. BW4100) will be 6404.20.40, (HTS) which provides for footwear with outer soles of leather and uppers of predominantly textile, which is under 10 percent by weight of rubber or plastics or not over 50 percent by weight of textile materials and rubber or plastics, valued over $2.50/pair. The rate of duty will be 10 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding this ruling, contact National Import Specialist, Richard Foley at (212) 637-7089.

Sincerely,

Robert Swierupski
Director,

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