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HQ 955891


April 1, 1994

CLA-2 CO:R:C:M 955891 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.30

Charles G. Hartill, LCHB
145-30 157th Street
Jamaica, NY 11434

RE: Footwear; Shoes, dance; Sole, external surface area; HRL 955229

Dear Mr. Hartill:

This is in reference to your letter dated January 10, 1994, to the Area Director of Customs in New York, on behalf of Ballet Makers, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of two dance shoes produced in Brazil. In New York Ruling Letter 893904 dated February 28, 1994, the Area Director of Customs in New York responded to your inquiry regarding the classification of style CG 2004. Your letter, together with a sample of style CG 2006 and its components, has been referred to this office for a response.

FACTS:

The sample, identified as style CG 2006, is a "split-sole" soft dance shoe having a cotton textile upper. The sole is made of cotton textile and attached to the outer surface are two thin tear-drop shaped pieces of leather, the larger one at the ball of the foot and the smaller piece at the heel area of the foot. An elastic cord runs along the entire topline of the upper permitting the shoe to be tightened or loosened as necessary. Two elastic straps sewn on each side of the shoe at the rear of the upper provide the means for holding the shoe to the foot.

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 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 provides for footwear, 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 . . . .

In determining the constituent material of the outer sole, the leather piece in the heel area should not be included if the exclusion in EN (C) to chapter 64, HTSUS, is taken literally. However, even though the piece is "attached," we consider it to be too thin and too oddly shaped to be within the common meaning of the term "heel." We believe that the EN is referring to "heeled" shoes which have a "sole" area and a "heel" area separated by some "bottom" which does not come in contact with the ground.

The softness and flexibility of the textile material on the bottom of the shoe and the fact that the leather pieces and the textile material at the front portion of the shoe are virtually on the same plane, persuades us that more of the textile material will come into contact with the ground than leather, when the shoe is worn. Consequently, the dance shoe is classifiable under subheading 6405.20.30, HTSUS, which provides for other footwear, with uppers of textile materials, with uppers of vegetable fibers. See Headquarters Ruling Letter (HRL) 955229 dated December 1, 1993, covering similar footwear.

HOLDING:

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

The dance shoe, style CG 2006 is dutiable at the rate of 7.5% ad valorem under subheading 6405.20.30, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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