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HQ 087204


June 22, 1990

CLA-2 CO:R:C:G 087204 NLP

CATEGORY: CLASSIFICATION

TARIFF NO: 6404.19.9090

Ms. Deborah Riding
Customs Brokerage Department Manager
Kuehne & Nagel, Inc.
8801 Bellanca Avenue
Los Angeles, CA 90045

RE: Slippers

Dear Ms. Riding:

This is in response to your letter of April 9, 1990, on behalf of ASL Distribution Co., Inc., requesting a classification of an infant's shoe, manufactured in West Germany, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted for our examination.

FACTS:

The infant's shoe has a multicolored textile upper which ends above the ankle, and which has a hook and loop closure. The upper has two round suede leather patches at the closure as well as a suede leather heel bumper. In addition, the shoe has a suede leather band, 3/4 of an inch wide, which goes around the bottom of the upper, from one end of the heel bumper to the other. The outer sole of the shoe is composed of a suede leather material which is covered with a thick rubber design made up of rows of dots at the heel and toe area and a caricature, a stick figure drawing of a child. The design is applied to the outer sole, and the outer sole is attached to the upper by means of the suede band mentioned above. The shoe also has a felt midsole.

ISSUES:

Whether the outer sole of the infant's shoe is of rubber/plastic or suede leather.

Whether the upper of infant's shoe is of textile material or suede leather.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Classification of goods in Chapter 64, HTSUSA, which provides for footwear, is determined by the materials that comprise the outer soles and uppers of the footwear. Note 4(b) to Chapter 64, HTSUSA, states that the constituent material of the outer sole shall be taken to be the material having the greatest surface in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments. Customs does not consider these plastic traction dots to be excludable as accessories or reinforcements since they do not resemble the given examples in Note 4(b) to Chapter 64, HTSUSA. Therefore, the traction dots are part of the material of the outer soles and they must be considered in determining the composition of the outer sole.

In the instant case, the felt midsole of the shoe reduces the rigidity of the suede leather part of the sole. As a result, the dotted areas on the sole may recede somewhat when the shoe is worn. Therefore, some of the leather material on the outer sole will come into contact with the ground when the slipper is worn.

It is our position that, even though some of the leather material on the shoe's sole will touch the ground, the rubber/plastic comprises the constituent material of the outer sole for classification purposes. While the rigidity or flexibility of a sole is an important factor in determining the material of the outer sole it is not the only factor to be considered. Other factors to consider include the ground surface, the weight of the wearer and the size, shape and placement of the dots on the sole.

The rubber/plastic dots are thicker than 1/32 inch and the dots in the sole and the heel patterns are 3/16 to 1/8 of an inch apart (on center). The caricature covers about three fifths of the length of the sole and the traction dots cover an additional fifth. Since the dots are spaced close together and cover most of the outer sole, the rubber/plastic design and dots will have the greatest area in contact with the ground and comprise the constituent material of the outer sole for classification purposes.

Moreover, it is our position that the upper is comprised of a textile material and not suede leather. Note 4 (a) to Chapter 64, HTSUSA, states that:

The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.

Furthermore, General Explanatory Note (D) to Chapter 64 states, in pertinent part:

If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, protective or ornamental strips or edging, other ornamentation ( e.g. tassels, pompoms or braid), buckles, tabs, eyelet stays, laces or slide fasteners.

It is Customs position that the term "accessories and reinforcements" although not fully defined, includes any additional material added to an otherwise completed upper material. Moreover, when determining the external surface of a shoe for tariff purposes, pieces of material that are attached to a shoe may only be excluded or included as a whole. In no instance may only part of an item be excluded or included from the upper.

In determining what constitutes the external surface of the upper of the booty we need to exclude the accessories and reinforcements. First, we exclude the suede leather band which goes around the bottom of the upper. The removal of this piece only exposes additional areas of the completed textile upper and is, therefore, a reinforcement. Second, the suede leather bumper is excludable as a reinforcement. Finally, the two round suede leather patches at the closure are excluded because they are ornamental.

As a result of the above exclusions, it is apparent that the textile material comprises the greatest external surface area of the shoe's upper, rather than the leather suede components. Thus, the instant footwear is classifiable in Heading 6404, which provides for footwear with outer soles of rubber or plastic and uppers of textile materials.

HOLDING:

The children's booties are classifiable in subheading 6404.19.9090, HTSUSA, which provides for footwear with outer soles of rubber or plastics and uppers of textile materials, other, valued over $12/pair, for other persons. The rate of
duty is 20 percent ad valorem. If the booties are valued over $6.50/pair, but not over $12/pair, they would be classified in 6404.19.80, HTSUSA, with duty at the rate of 90 cents/pair + 20 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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