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HQ 088305


February 11, 1991

CLA-2 CO:R:C:M 088305 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.9090

Ms. Tinka G. Andrade
International Import Manager
Meldisco, Division of Melville Corp.
933 Macarthur Boulevard,
Mahwah, New Jersey 07430

RE: Slipper, textile, open toe, open back. Sole, external surface

Dear Ms. Andrade:

In a letter dated October 12, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an infant's slipper produced in China. A sample was submitted for examination.

FACTS:

The sample is a child's open toe and open back textile slipper. The textile sole has numerous small plastic "dots" placed on an otherwise textile sole.

By our measurement the plastic "dots" are well under 1/32 inch thick. They are usually about 1/8 inch in diameter and are spaced apart (measured from on center) approximately 4/18 (.22) inch from side to side and 1/5 (.2) inch along the diagonals. The sample has a rigid cardboard insole, but its under surface is covered by an approximately 1/8 inch thick layer of foam rubber or plastic so the surface of the sole is "moderately" flexible.

ISSUE:

What is the constituent material of the sole having the greatest surface area in contact with the ground?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA 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.

Classification of goods under Chapter 64, HTSUSA, which provides for footwear, is determined by the materials that comprise the outer soles and uppers. Note 4(b) to that chapter provides that "[t]he 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."

An examination of the surface area of the sole shows that the plastic "dots" cover less of the sole portion of the shoe than the textile material. This fact of itself is not conclusive that more textile material is in contact with the ground than plastic. However, as stated previously there is a layer of foam rubber or plastic beneath the surface of the outer sole which makes the sole flexible so that it is readily depressed. It appears that the weight of the wearer of the sandal would cause the "dots" to recede somewhat into the textile material with the result that more of the textile would be in contact with the ground than the plastic.

HOLDING:

The child's open toe and open back textile slipper is classifiable under subheading 6405.20.9090, HTSUSA, as other footwear, with uppers of textile materials, other. The applicable rate of duty is 12.5 percent ad valorem.

Sincerely,


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