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HQ 088962


August 2, 1991

CLA-2 CO:R:C:M 088962 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.90

Mr. Michael Caldera
H.Z. Bernstein Co., Inc.
One World Trade Center
Suite 1973
New York, NY 10048

RE: Slippers with outer soles made of textile fabric which are covered with plastic/rubber traction dots; Heading 6405

Dear Mr. Caldera:

This is in response to your letter dated February 27, 1991, requesting a tariff classification under the Harmonized Tariff Schedule of the United Stated Annotated (HTSUSA) for slippers with traction dots. The sample submitted for our examination was used in laboratory tests. We have retained the slipper for comparison purposes and will return it to you at a later date if you desire.

FACTS:

The subject merchandise is a women's textile slipper. The slipper's upper is in the shape of a duck and is composed of a man-made textile with polyfiber fill stuffing. In addition, two hard plastic eyes are attached to the duck's head. The outer sole is soft and fully flexible. It is composed of a twill woven fabric with an alternate dot pattern of a plastic or rubber material evenly distributed over the entire surface. The dots measure 3 millimeters in diameter and each dot is 2 millimeters from each other dot, measured from edge to edge. The slipper will be made in China.

ISSUE:

Whether the surface of the outer sole is composed of textile or rubber/plastic for tariff purposes?

LAW AND ANALYSIS:

Classification of goods in chapter 64, HTSUSA, which provides for footwear, is determined by the materials of the upper and the outer soles. 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 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 these rubber/plastic traction dots to be excludable as accessories or reinforcements since they do not resemble the given exemplars in Note 4(b). Therefore, the traction dots are part of the material of the outer sole and they must be considered in determining the composition of the outer sole.

If the textile material is deemed to be the constituent material of the slipper's outer sole, the slipper would be classifiable in subheading 6405.20, HTSUSA, which provides for other footwear, with uppers of textile materials. If the rubber/plastic traction dots are the constituent material of the outer sole, the slipper would be classifiable in subheading 6404.19, HTSUSA, which provides for footwear with outer soles of rubber or plastic and uppers of textile materials, other.

A laboratory analysis of the sample slipper reveals that the rubber/plastic dots cover 25 percent of the external surface area of the sole, while the textile portion covers 75 percent of the sole's external surface area. This information of itself is not conclusive that more textile than rubber/plastic would be in contact with the ground when the slipper is in use. However, it is our observation that the textile sole is soft and flexible. Therefore, under the weight of the wearer, the rubber/plastic dots would not prevent the textile material in its totality from being in contact with the ground. Thus, it is our opinion that the textile would be the material with the greatest degree of contact with the ground and the slipper should be classifiable in subheading 6405.20.90, HTSUSA.

HOLDING:

The slippers are classified 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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