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HQ 955229





December 1, 1993

CLA-2 CO:R:C:M 955229 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.30

Jenny Siu-Kan Chiang
140 West End Avenue, 23G
New York, NY 10023-6145

RE: Footwear; Shoes, Dance; Sole, External surface area

Dear Ms. Chiang:

This is in reply to your letter dated September 13, 1993, to the U.S. Customs Service in New York, concerning the tariff classification of a "split-sole" soft dance shoe which you intend to import from China. Your letter, together with the sample dance shoe, was referred to this office for a response.

FACTS:

The sample "split-sole" soft dance shoe has a woven 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]."

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 54 FR 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. The applicable rate of duty for this provision is 7.5% ad valorem.

HOLDING:

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

The subject dance shoe is classifiable under subheading 6405.20.30, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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