HQ 957508: Footwear; Shoes, bowling; Sole, external surface area: Textile materials; HRL 952745; DD 800938 and NYRL 803238 affirmed

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 957508 

                              March 7, 1995

CLA-2  CO:R:C:M  957508 DFC 

CATEGORY:  Classification 

TARIFF NO.:  6405.90.90  

Mr. Adonis Rawlins 
Operations Manager 
Mavade Footwear 
30467 Beck Road 
Wixom, Michigan 48393  
  
RE:  Footwear;  Shoes, bowling;   Sole, external surface area:
     Textile materials;  HRL 952745; DD 800938 and NYRL 803238
     affirmed  

Dear Mr. Rawlins: 

     In a letter dated December 28, 1994, you asked that District
Ruling (DD) 800938 issued on August 22, 1994, by the District
Director of Customs, at New Orleans, and New York Ruling Letter  
(NYRL) 803238 issued November 10, 1994, by the Area Director of
Customs, New York Seaport, to E. C. McAfee Co., on your behalf,
be revoked.  These rulings concerned the tariff classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of certain bowling shoes produced in China.  Samples
were submitted for examination.  

FACTS: 

     The two samples, designated as styles "Cyclone II (58-
109427)" and "Dart Too (58-109429)" are both low-cut lace up
bowling shoes with plastic uppers and padded ankle collars and
tongues.  The soles of both pairs of shoes are rubber.  However,
both the left and right shoe of each pair have synthetic suede
sliding pieces stitched over the rubber and covering all the
front part of the sole.  

     In DD 800938 and NYRL 803238, Customs ruled that the sample
footwear described above, except that only one shoe of each pair 
had a "sliding piece" outer sole, was classifiable under
subheading 6405.90.90, HTSUS, which provides for other footwear,
other, other.    




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]."  In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes. 

     Note 3 to chapter 64, HTSUS, reads, as follows:  

     3.   For the purposes of this chapter, the expression
          "rubber or plastics" includes any textile material
          visibly coated (or covered) externally with one or both
          of those materials. 

     Note 4(b) to chapter 64, HTSUS, 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 . . . . 

     You maintain that the sample bowling shoes are classifiable
under subheading 6402.99.15, HTSUS, which provides for other
footwear with outer soles and uppers of rubber or plastics, other
footwear, other, 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, other.  The applicable rate of
duty for this provision is 6% ad valorem.    

     The rationale for your claimed classification under
subheading 6402.99.15, HTSUS, depends on plastic being the
constituent material of the outer sole having the greatest
surface area in contact with the ground.  It appears to be your
position that the "synthetic suede sliding pads" are a plastic
material.  The laboratory analysis you have attached dated
December 24, 1994, from Hyung Tong Industry Co., Ltd., Korea
states, "Sliding Piece Composition Non Woven Fabric, P.U.
impregnated."  

     General EN's (E) and (F) to chapter 64, at page 875, which
are relevant here, read as follows:
     
     (E)  It should be noted that for the purposes of this
          Chapter, the expression "rubber or plastics" includes
          any textile material visibly coated or covered
          externally with one or both of those materials, which
          means that the coating or covering can be seen with the
          naked eye with no account being taken of any resulting
          change of colour.  

     (F)  Subject to the provisions of (E) above, for the
          purposes of this Chapter the expression 'textile
          materials' covers the fibres, yarns, fabrics, felts,
          nonwovens, twine, cordage, ropes, cables, etc., of
          Chapters 50 to 60.  

     The P.U. impregnated synthetic suede material, if imported
in rolls, would probably be classifiable under heading 5903,
HTSUS, which provides for textile fabrics impregnated, coated,
covered or laminated with plastics, other than those of heading
5902.  Note 3 to Chapter 64, HTSUS, does not apply because the
fibers are clearly visible all over the external surface of the
sliding pads.  Thus, following General EN F to Chapter 64, HTSUS,
the pads are of textile material.

     You have cited HRL 952745 dated December 31, 1992, as 
authority for your contention that the "synthetic suede sliding
pads" in issue are plastic.  In that ruling bowling shoe style
FBX-21, in men's and women's sizes, was classified under
subheading 6402.99.15, HTSUS, as having outer soles of rubber or
plastics.  However, it should be noted that all the styles in
issue in HRL 952745 had "sliding pads" of leather so, it has
nothing to do with your claim that your "sliding pads" are
plastic.  Further, HRL 952745 does not help your position in that
the styles in issue are more like styles FBX-10,11,30 and 31,
ruled on therein, in that the constituent material of the outer
soles having the greatest surface area in contact with the ground

was leather, thus mandating classification under subheading
6405.90.90, HTSUS.  
 
HOLDING:

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

     Styles "Cyclone II (58-109427) and Dart Too (58-109429) are
dutiable at the rate of 12.5% ad valorem under subheading
6405.90.90, HTSUS.  This classification would be applicable
whether one or both of the shoes in a pair have the "sliding
piece." 

     DD 800938 and NYRL 803238 are affirmed. 



                                   Sincerely, 



                                   John Durant, Director 
                                   Commercial Rulings Division