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HQ 087171


October 5, 1990

CLA-2 CO:R:C:G 087171 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.90.9000

Mr. Peter Jay Baskin
Attorney at Law
Sharretts, Paley, Carter and Blauvelt, P.C. 67 Broad Street
New York, New York 10004

RE: Men's Bowling Shoes

Dear Mr. Baskin:

This is in reference to your letter of May 14, 1990, requesting a tariff classification ruling on women's bowling shoes. A pair of men's bowling shoes was submitted as a sample. You telephonically confirmed that the ruling request covers men's bowling shoes and not women's bowling shoes as stated in your letter.

FACTS:

The merchandise in question consists of a pair of men's bowling shoes whose external surface is almost completely composed of plastic material. The outer sole of each shoe is composed of plastic and leather. In accordance with their design to be used by a right handed bowler, the left shoe of the pair has a large piece of split leather stitched over the sole thereof and the right shoe of the pair has a small piece of split leather covering the tip of the toe area. The outer soles of both shoes incorporates a plastic heel lift.

ISSUE:

Are the bowling shoes considered footwear with outer soles and uppers of rubber or plastics for tariff classification purposes?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is to be determined in accordance with the terms and headings and any relevant section or chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's may be applied, taken in order.

In considering this matter we noted that the shoes, although a pair, have different outer soles in accord with their intended use. Counsel proffers for consideration the proposition that the external surfaces of the two different outer soles should be combined to determine whether the external surface of the outer soles are predominantly "of leather" or predominantly "of rubber or plastics".

Legal Note 4(b) to Chapter 64, HTSUSA, provides that:

(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.

General Note (c) to Chapter 64 of the Explanatory Notes, which represent the official interpretation of the Harmonized System at the international level, indicates that the determination of which material has the greatest surface area in contact with the ground should be made when the footwear is in use.

The above notes do not seem to address the tariff classification issue when the outer sole of each shoe of a pair is not the same. Counsel in its original ruling request, a conference of September 18, 1990, and a further submission of October 1, 1990, suggests that the surface area of the pair of bowling shoes should be combined and considered as a unit. While we agree that the bowling shoes are similar in form or function and are matched or associated and are, therefore a pair of shoes (see The American College Dictionary, Second College Edition, 1982), that two shoes of a pair are normally classified in the
same heading and that counsel's suggestion seems quite logical, we find no basis in the HTSUSA for so combining articles. We note the language of Heading 6402, HTSUSA, which counsel suggest as the proper heading, speaks of outer soles of a certain material. Since both shoes of a pair, including some bowling shoes, normally have the same type of outer soles, we believe it is reasonable to believe that the drafters of the Harmonized System had that concept in mind when drafting the language of Heading 6402, HTSUSA. We believe that there is a clear presumption in such language that each shoe of a pair classifiable thereunder is the same as the other. Certainly the subject shoes, while forming a pair, in toto, have definite separate identities, one has an outer sole for sliding and the other does not.

In reviewing the headings eligible for classification of the shoes, we noted that the bowling shoes, whether considered in the manner suggested by counsel or if each shoe is separately considered, would be classified under Chapter 64, HTSUSA. In accordance with GRI 6 we next referred to any subheadings and any related subheading notes. In reviewing the subheadings eligible for classification, we noted subheading 6402.99.15, HTSUSA, as suggested by counsel, relative to other footwear with outer soles and uppers of rubber or plastics, and subheading 6405.90.9000, HTSUSA, relative to other footwear.

Since the goods are classifiable under two or more subheadings because they consist of more than one material or substance, they are, pursuant to GRI 2(b), to be classified according to the principles of GRI 3, we next referred to that GRI. Since the two possible subheadings are equally specific, we found that the shoes are not classifiable in accordance with GRI 3(a). Although the shoes are clearly "composite goods...made up of different materials" or "goods put up in sets for retail sale" pursuant to GRI 3(b), that GRI is not applicable since neither shoe gives the pair it essential character. We, therefore, turned to GRI 3(c) which provides:

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Based thereon, we believe the bowling shoes should be classified under the provisions for other footwear rather than the provisions for other footwear with outer soles and uppers of rubber or plastics.

HOLDING:

The bowling shoes are classifiable under subheading 6405.90.9000, HTSUSA, as other footwear, other, other. The applicable rate of duty is at the general rate of 12.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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