Classification of shoe with embossed plastic upper, leather linings and trim, and leather sole with rubber plug inserts

HQ 081588 July 11, 1988 CLA-2:CO:R:C:G 081588 SR 826075 CATEGORY: Classification TARIFF NO.: 6405.90.90 Mr. Paul Caterina Bally Incorporated One Bally Place New Rochelle, New York 10801 RE: Classification of shoe with embossed plastic upper, leather linings and trim, and leather sole with rubber plug inserts Dear Mr. Caterina: This letter is in reference to your inquiry of October 27, 1987, as to the classification of a woman's shoe (your item #3030) under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted. FACTS: The sample in question is a woman's closed toe, closed back slip-on with an embossed plastic upper, leather trim collar, and leather tassels across the vamp. The shoe has a 1/2-inch wood wedge, rubber heel, and a leather sole with 14 rubber plugs inserted through holes in the leather. Each of the rubber plugs is approximately 1/4-inch in diameter and 1/8-inch thick, with about 1/32 of an inch projecting beyond the surface of the leather sole. ISSUE: Whether the outer sole of the shoe is the rubber plugs or the leather sole. LAW AND ANALYSIS: Subheading 6402.99.30, HTSUSA, provides for footwear with outer soles and uppers of rubber or plastics, footwear, of the slip-on type, that is held to the foot without the use of fasteners. Subheading 6405.90.90, HTSUSA, provides for other footwear. -2- "Outer sole" is defined, as used in headings 64.01-64.05, HTSUSA, in Chapter 64 of the Harmonized System and Nomenclature Explanatory Notes, General Explanatory Note (c). It defines the term as meaning, "that part of the footwear, (other than an attached heel) which, when in use is in contact with the ground. The constituent material of the outer sole for purposes of classification shall be taken to be the material having the greatest surface area in contact with the ground. In determining the constituent material of the outer sole, no account should be taken of attached accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments which partly cover the sole...". Headquarters Ruling Letter (HRL), 081150, dated November 5, 1987, involved a child's slipper consisting of a textile sole with rubber/plastic traction dots. The rubber dots in this case were approximately 1/8 inch in diameter and less than 1/32-inch thick. It was decided in this ruling that both the rubber dots and the textile material making up the rest of the sole come in contact with the ground. The shoes at issue are similar to the childrens' slippers, however, they have a harder leather sole rather than textile material. It was shown by putting ink on the leather part of the sole and applying pressure that when weight is put on the shoes in question the leather part of the sole touches the ground. "When in use" the leather part of the sole will touch the ground not only between the dots but also along the front sides and in the toe area where there are no rubber dots, depending on the walking style of the person wearing the shoe. This would make the outer sole of the shoe both leather and rubber, classifiable by whichever had the most contact with the ground. However, the Explanatory Material also stated that no account should be taken of attached accessories or reinforcements such as spikes, protectors or similar attachments which partly cover the sole. The rubber dots appear to be the type of accessory which is exempt from being included as part of the sole. They are in the nature of spikes and it would seem that they are meant to protect the wearer from slipping (also the purpose of spikes) as well as to protect the leather from wear. -3- HOLDING: The outer sole of this shoe is leather. Therefore this shoe should be classified under subheading 6405.90.90, HTSUSA, as other footwear with duty at the rate of 12.5 percent ad valorem. This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes before enactment this advice may not continue to be applicable. Sincerely, John Durant, Director Commercial Rulings Division