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HQ 088391


February 13, 1991

CLA-2 CO:R:C:G 088391 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.90

Mr. Ulrich G. Pendl
Eurosales Management and Marketing Corp.
1114 Avenue of the Americas
31th Floor
New York, NY 10036

RE: Hut shoe with traction dots

Dear Mr. Pendl:

This is in response to your letter dated November 16, 1990, requesting the tariff classification of slippers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples produced in West Germany were provided for our examination.

FACTS:

The subject slipper is an ankle high slip-on type shoe with a wool upper and an acrylic textile cuff. The shoe has a foxing- like band which is composed of textile with plastic and/or rubber visibly covering three fourths of the band's surface. The slipper has an outer sole of wool felt material that has been coated or impregnated with rubber and/or plastics. In addition, the outer sole has plastic traction dots laid out in groups of six in a rosette pattern. We have measured the dots and found them to be 1/8 inch in diameter, spaced 1/4 inch apart (on center) measuring from the central dot in the rosette to each surrounding dot, spaced 1-1/2 inch apart from central dot to central dot on the vertical axis and 1 inch apart from central dot to central dot on the horizontal and diagonal axis. The tops of the dots appear to be level with the textile surface.

The FOB price of the slippers will vary between $5.50 a pair and $9.00 a pair depending in the size of the slipper.

In addition, we note that the submitted sample is not marked with the country of origin.

ISSUES:

Whether the surface of the outer sole is considered to be textile or rubber/plastic.

LAW AND ANALYSIS:

The first question to be resolved is whether the felt material on the outer sole of the shoe that has been coated with rubber and/or plastics is considered a textile or rubber and/or plastic for the purposes of classification in Chapter 64, HTSUSA, which provides for footwear. Note 3 to Chapter 64, HTSUSA, states 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. It is Custom's position that the felt is not visibly coated and, therefore, would not be considered a rubber or plastics for Chapter 64 purposes.

Classification of goods in Chapter 64, HTSUSA, is determined by the materials of the outer soles and uppers. Note 4(b) to Chapter 64, HTSUSA, states 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 dots 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 plastic dots are part of the material of the outer sole and they must be considered in determining the composition of the outer sole.

Since the sole of this slipper is made up of both plastic and textile, it must be determined which of these components has the most contact with the ground. Various factors are considered in determining the material of the outer sole, for example the rigidity or the flexibility of the sole, the weight of the wearer and the size, shape and placement of the traction dots. Since the sole of the slipper is rigid it is more likely that the dots will not recede into the fabric when the slipper comes in contact with the ground and they will come into the most contact with the ground. See, HRL 084713, dated August 3, 1989, HRL 086246, dated April 20, 1990. However, in the instant case the dots do not cover the whole sole, there is approximately an inch between the rosettes and the dots are not raised. Therefore, it is our position that the textile material comprises the constituent material in contact with the ground. See, HRL 086072, dated March 8, 1990, wherein a slipper with a rigid sole was classified as having textile comprise the constituent material in contact with the ground because the dots did not cover a substantial amount of the slipper's sole. The instant shoe would be classified in Heading 6405, HTSUSA.

HOLDING:

The instant slippers are classifiable in subheading 6405.20.90, HTSUSA, which provides for other footwear, with uppers 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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