us-cbp-cross-rulings-hq-952745•HQ 952745: Footwear; Shoes, bowling; Sole, external surface area: Heel, applied;
HQ 952745: Footwear; Shoes, bowling; Sole, external surface area: Heel, applied;
us-cbp-cross-rulings-hq-952745HQ 952745: Footwear; Shoes, bowling; Sole, external surface area: Heel, applied;Guidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 952745
December 31, 1992
CLA-2 CO:R:C:M 952745 DFC
CATEGORY: Classification
TARIFF NO.: 6405.90.90; 6402.99.60-90; 6402.99.15
Peter Jay Baskin, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-Seven Broad Street
New York, N.Y. 10004
RE: Footwear; Shoes, bowling; Sole, external surface area:
Heel, applied;
Dear Mr. Baskin:
In a letter dated September 1, 1992, on behalf of Dexter
Shoe Company, you inquired as to the tariff classification under
the Harmonized Tariff Schedule of the United States (HTSUS) of
three pairs of bowling shoes. In a further submission dated
November 13, 1992, you amended your original request to include
three additional pairs of bowling shoes.
FACTS:
The samples submitted with your letter of September 1, 1992,
consist of three prototype half-pairs of women's bowling shoes
designated as styles FBX-10, FBX-20, and FBX-30. The uppers of
these styles are made almost entirely of vinyl. The outer soles
of the samples are made in part of leather [in the front] and in
part of rubber [at the center arch and heel areas]. The most
significant difference in the samples is the degree to which the
rubber heel lift is raised from the remainder of the outer sole.
You state that the additional pairs of bowling shoes designated
as styles FBX-11, FBX-21 and FBX-31 are identical in all material
respects to the styles represented by the submitted samples,
except that the toe and heel bumpers for each of the shoes will
have a combined encirclement of less than 39 percent of the
perimeter of the shoe.
Your description of the sample shoes and the measurement of
the external surface areas of the soles is as follows:
Style FBX-10 features a slightly raised (approximately
1/8 inch) heel lift area (which is not separately
attached) of rubber, a leather tap toward the front of
the shoe which is generally shaped like an egg except
-2-
that the top of the "egg" has been trimmed to allow for
a rubber tip on the very front of the shoe, and the
balance of the bottom of the shoe being rubber. The
leather tap on the prototype extends roughly less than
1/16 inch from the surface to which it is attached.
Between the leather tap and the raised heel,
covering the arch of the foot, is a rubber-surfaced
area with very slightly raised lettering reading
"Dexter" along with a registered trademark symbol.
. . . The entire sole has a area of 22.244 square
inches. However, a portion of the arch extending from
the heel to slightly past the word "Dexter" measuring
3.0397 square inches in area, does not come in contact
with the ground when the shoe is in use. Therefore,
the entire area of the sole which comes in contact with
the ground when the shoe is in use measures 19.2043
square inches. Of that, the heel constitutes 5.5573
square inches, the tap measures 9.5501 square inches,
the rubber tip (at the front of the shoe) is 0.7949
square inches [sic], and the forward portion of the
arch which does come into contact with the ground when
the shoe is in use (hereinafter, the "forepart")
measures 3.3017 square inches.
Style FBX-20 is a flat-bottomed shoe whose outer sole
consists entirely of rubber except for a patch of
leather which is shaped and situated on the sole
similarly to the leather tap on FBX-10. . . . the outer
sole has an area of 21.7895 square inches, of which
9.6242 square inches consists of leather. As for the
rubber portions of the sole, the heel area measures
5.5713 square inches, the rubber tip is 0.6097 square
inches [sic], the rubber tip is 0.6017 square inches
[sic], and the arch area (all of which comes into
contact with the ground when the shoe is in use)
measures 5.9837 square inches.
Style FBX-30 is similar to the style FBX-10 except that
the back of the leather tap has been trimmed, thereby
exposing more rubber on the surface of the outer sole.
The outer sole of the shoe measures 22.0400 square
inches, but the portion of the arch not coming into
contact with the ground when the shoe is in use equals
3.0144 square inches. That leaves a total of 19.0256
square inches of surface area which touches the ground
when the shoe is in use, which is comprised of the
leather tap (8.3187 square inches), the heel-lift area
(5.54301 square inches), the rubber tip (0.6848 square
inches [sic]), and the forepart (4.4801 square inches).
-3-
You claim that the three styles represented by the samples
plus the styles that were included in your amendatory request of
November 13, 1992, are properly classifiable under subheading
6402.99.15, HTSUS, as other footwear with outer soles and uppers
of rubber or plastics, other footwear, 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 (except footwear
having a foxing or a foxing-like band applied or molded at the
sole and overlapping the upper and except footwear designed to be
worn over, or in lieu of, other footwear as a protection against
water, oil, grease or chemicals or cold or inclement weather),
other.
ISSUE:
What is the constituent material of the outer soles of the
bowling shoes?
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 is relevant here 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.
-4-
You have calculated the constituent material of the outer
soles of the sample styles as follows:
External Surface Area (Sq. in.)
Leather Rubber
FBX-10
Heel 5.5573
Tap 9.5501
Tip 0.7949
Forepart 3.3017
Totals 9.5501 9.6539
Leather Rubber
FBX-20
Heel 5.5713
Tap 9.6242
Tip 0.6097
Arch 5.9837
Totals 9.6242 12.1647
FBX-30
Heel 5.5401
Tap 8.3187
Tip 0.6848
Forepart 4.4801
Totals 8.3187 10.7050
Based on the above measurements you assert that for each of
the three styles, rubber predominates over leather in surface
area of the outer sole in contact with the ground.
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 an
attached heel) which, when in use is in contact with
the ground. . . .
-5-
You point out that the heels on the sample footwear are not
attached heels, but are molded as an inseparable part of the
outer soles. We consider the "heel lift" area to be part of the
outer sole because, even though it is quite distinct and looks
like a thin "applied heel," it is actually the same molded piece
as the rubber "forepart," "tip" and secondary midsole under the
leather.
The "forepart" is that part of the general arch area which
you claim is the part which "comes into contact with the ground
in use." While some percentage of the area between the heel and
the raised leather outer sole will come in contact with the
ground, albeit relatively "soft" contact, it appears that most of
that area will not come into contact with the ground, and thus is
not considered a part of the outer sole. It appears that the
drafters of the tariff schedule did not intend when writing note
4(b) to Chapter 64, HTSUS, that one sub-area of a constituent
material would be "outer sole" and that another would not. A
general "all or nothing" approach is implied by their language.
As a practical matter, this approach does avoid the almost
impossible task of trying to determine exactly which areas will
be "in contact with the ground" since this obviously depends upon
a number of variables (e.g., weight and gait of the wearer, shape
of the wearer's foot, rigidity of the ground, etc).
The "forepart" is a part of the piece which is a "bumper"
around the toes and partly under the front edge of the midsole.
The area, about 1/8 inch wide, which is horizontal is recessed
compared to the leather sole, so even some of that horizontal
surface will clearly never be in contact with the ground. This
"bumper" gradually curves up to the vertical. All or part of
that curve up would come into contact with the bowling lane
depending on the bowler's style. However, it is apparent that
especially in athletic footwear not all areas that come in
contact with the ground are part of the outer sole. For example,
many textile tennis shoes have a rubber insert covering the
fabric above the front of the toes since many tennis players drag
the front of their foot across the ground just after serving the
ball. Thus, it is obvious that the rubber piece on top of the
toes is not part of the area of the outer sole under the HTSUS.
Likewise, here it is our view that the "forepart" is not part of
the outer sole because it is basically a "bumper" even though
some of it, some of the time, will be in contact with the ground.
When we exclude the forepart area of styles FBX-10, FBX-11,
FBX-30 and FBX-31 from measurement as external surface area of
the sole, the constituent material of the outer sole having the
greatest surface area in contact with the ground is leather.
-6-
Consequently, women's styles FBX-10, FBX-11, FBX 30 and FBX-31
are classifiable under subheading 6405.90.90, HTSUS, as other
footwear, other, other.
The sample of women's style FBX-20 is constructed
differently than the samples of styles FBX-10 and FBX-30 in that
the leather "tap," the heel "lift" and the area in between are
all on the same plane. Thus, it is apparent that the material
with the greatest surface area in contact with the ground will be
rubber. However, an examination of the sample reveals that there
is an overlap of the upper by the sole of over 1/4 inch around
45% of the perimeter of the shoe. The overlap on the instant
shoe functions as a foxing band and has the appearance of foxing
since all or most of the 1/4 inch overlap is visible noting that
it is at the front, the outside, and the back of the shoe. See
T.D. 92-108, 26 Cust. Bull. 48. (1992).
In view of the foregoing, it is our position that style FBX-
20 possesses a foxing-like band which mandates its classification
under subheading 6402.99.60-90, HTSUS, as other footwear with
outer soles and uppers of rubber or plastics, other, other, with
duty at a rate depending on value per pair.
You have informed us that style FBX-21 will be made in men's
and women's sizes. You have provided samples of the outer soles
of style FBX-21 in both men's and women's sizes along with
diagrams of the outer soles showing the relative areas of leather
and rubber. The diagram of style FBX-21W shows that the
constituent material of its outer sole having the greatest
surface area in contact with the ground is rubber [45.9% leather
to 54.1% rubber]. That diagram also shows that the sole overlaps
36% of the perimeter of the shoe. The diagram of style FBX-21M
shows that the constituent material of its outer sole having the
greatest surface area in contact with the ground is rubber [47.7%
leather to 52.3% rubber]. That diagram also shows that the sole
overlaps 36.5% of the perimeter of the shoe. It has been the
position of the Customs Service that an encirclement of less than
40% of the perimeter of the shoe by the band does not constitute
foxing or a foxing-like band. See T.D. 92-108, 26 Cust. Bull.
48. (1992). Consequently, style FBX-21 in men and women's sizes
is classifiable under subheading 6402.99.15, HTSUS, as other
footwear with outer soles and uppers of rubber or plastics, other
footwear, 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 (except footwear having a foxing or a foxing-like band
applied or molded at the sole and overlapping the upper and
-7-
except footwear designed to be worn over, or in lieu of, other
footwear as a protection against water, oil, grease or chemicals
or cold or inclement weather), other.
HOLDING:
Styles FBX-10, FBX-11, FBX-30 and FBX-31 are classifiable
under subheading 6405.90.90, HTSUS.
Style FBX-20 is classifiable under subheading 6402.99.60-
90, HTSUS.
Style FBX-21 in men and women's sizes is classifiable under
subheading 6402.99.15, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
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