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HQ 087336


August 28, 1990

CLA-2 CO:R:C:G 087336 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.90

Fermin Cuza
Mattel, Inc.
Customs Administration
P.O. Box 326
Hawthorne, CA 90250-0326

RE: Disney Mickey Footlights Slippers

Dear Sir:

This is in response to your letter of May 4, 1990 requesting a tariff classification for Disney Mickey Footlights Slippers, item numbers 9105 and 2407, under the Harmonized Tariff Schedule of the United States (HTSUSA). A sample was submitted for our examination.

FACTS:

The Disney Mickey Footlights are children's slippers designed as a cartoon automobile with headlights. The headlights are activated by a pressure switch which is located in the toe of the slipper, with two AA penlight batteries contained in a separate plastic housing. The door to the battery compartment is recessed and does not come into contact with the floor.

The uppers of the slippers are made of polyester textile with a brushed tricot lining. The uppers are stuffed with a combination of polyester fibers, rubber foam and polyester foam. The uppers also contain a three dimensional vinyl figure of Mickey Mouse behind a steering wheel. The soles of the slippers are constructed of cotton twill with PVC, non-skid traction dots in the shape of Mickey Mouse's face, which measure approximately 1/4 of an inch in diameter and are spaced approximately an inch apart.

ISSUES:

Are the Disney Mickey Footlights toys of Chapter 95, HTSUSA, or footwear of Chapter 64, HTSUSA?

If the Disney Mickey Footlights are classifiable as footwear in Chapter 64, HTSUSA, whether the outer soles of the footwear are of textile or rubber/plastic?

LAW AND ANALYSIS:

The General Rules of Interpretation 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.

Chapter 95, HTSUSA, covers toys of all kinds whether designed for the amusement of children or adults. We consider toy footwear in Chapter 95, HTSUSA, to be doll's shoes, dress up shoes and items which would not be useful or saleable if the amusing and playful additions were not present. The Disney Mickey Footlights are not doll or dress up shoes and are usable and saleable without the figure of Mickey Mouse and the headlights.

Furthermore, the instant merchandise is not chiefly used for the amusement of children or adults and any amusement derived from the Mickey Mouse configuration is incidental to the product's primary function, which is to serve as footwear. The Disney Footlights are functional slippers with a toy design feature. As a result, the Disney Mickey Footlights are not classifiable in Chapter 95, HTSUSA, and are properly classifiable as footwear in Chapter 64, HTSUSA.

The next issue to be determined is whether the Disney Mickey Footlights have textile or plastic outer soles. Note 4(b) to Chapter 64, HTSUSA, states the following:

(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.

Customs does not consider the plastic Mickey Mouse faces on the outer sole to be excludable as accessories or reinforcements since they do not resemble the exemplars in Note 4(b) to Chapter 64, HTSUSA. Therefore, the Mickey Mouse faces are part of the material of the outer soles and they must be considered in determining the composition of the outer sole.

Various factors are considered in determining the material of the outer sole, for example the rigidity or flexibility of a sole, the ground surface, the weight of the wearer and the size, shape and placement of the traction dots on the sole. In the instant case, since the sole of the slipper is soft and flexible and the Mickey Mouse faces are spaced far apart, the textile material will be the material having the greatest contact with the ground. Thus, the instant merchandise is classifiable in Heading 6405, HTSUSA.

HOLDING:

The Disney Mickey Footlights are classifiable in subheading 6405.20.90, which provides for footwear, in which the outer sole's external surface is predominately other than rubber, plastics, leather, or composition leather; with upper's of textile materials, other. The rate of duty is 12.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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