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HQ 086374

March 26, 1991

CLA-2 CO:R:C:M 086374 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.30; 6404.19.50

District Director of Customs
300 Second Avenue, South
P.O. Box 789
Great Falls, Montana 59403

RE: Internal Advice Request No. 70/89 concerning the tariff classification of certain infant's corduroy booties. Sole, external surface; Dots, traction.

Dear Sir:

In a letter dated November 13, 1989, you asked for Internal Advice as to the classification of certain infant's corduroy booties pursuant to a request dated October 24, 1989, from counsel for Gold Inc., of Denver, Colorado. Samples of the booties were submitted for examination.

FACTS:

The sample children's booties have uppers of cotton corduroy textile materials which cover the ankles, and applied soles of woven man-made fiber textile material. Non- skid plastic dots were applied to the finished textile soles to provide extra traction for the wearer.

The booties are designed to be worn around the household by young children. They are held to the wearer's foot by means of a single shoelace which is permanently stitched to the upper. They do not have tongues or eyelets.

The bootie labelled style "A" has plastic bars which are typically about 1/16 inch long, 1/32 inch wide and 1/32 inch thick. The spaces between the "bars" vary because the "bars" vary in size and angle, but the spaces appear to be between 1/32 inch to 1/64 inch.

The bootie labelled style "B" has plastic" dots" which are about 1/8 inch in diameter and 1/32 inch thick. The "dots" are spaced approximately 3/16 inch apart (on center). Both styles have soft soles, i.e., there is no rigid insole beneath the fabric.

ISSUE:

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

LAW AND ANALYSIS:

In applying the Harmonized Tariff Schedule of the United States Annotated (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."

Counsel for Gold asserts that plastic coatings on top of textile materials used in outer soles should be considered "accessories or reinforcements." Customs has repeatedly taken the position that these "bars," "dots," and "chevrons" are not excludable as "accessories or reinforcements" because they do not resemble the exemplars in Note 4(b) to Chapter 64, HTSUSA, supra. Consequently, the "bars," "dots," and "chevrons" are part of the material of the outer sole and they must be considered in determining the composition of the outer sole.

Counsel for Gold states that "the plastic anti-skid dots in the instant case partly cover the sole. Considered separately or together, they cannot be said to constitute a plastic coating or covering." This is not a correct statement. The dotted sole material, if imported on the roll, would be classified under Heading 5903, HTSUSA, as textile fabrics, impregnated, coated, covered or laminated with plastics. The "barred" sole material would also be classified in Heading 5903, HTSUSA.

A laboratory analysis of the sole of style "A" reveals that plastic covers 58 percent of its external surface area. It is clear here, noting that it is virtually impossible to touch any of the underlying fabric with one's finger, that more plastic is in contact with the ground than fabric.

A laboratory analysis of the sole of style "B" reveals that textile covers 70 percent of its external surface area. This information of itself in not conclusive that more textile material is in contact with the ground than plastic. However, the sole of the bootie is soft and flexible and under the weight of a wearer the plastic dots would not prevent the textile material in its totality from being in contact with the ground. Consequently, it is our opinion that more textile would be in contact with the ground than plastic.

HOLDING:

The sample labelled as style "B" is classifiable under subheading 6405.20.30, HTSUSA, as other footwear with uppers of vegetable fibers. The applicable rate of duty is 7.5 percent ad valorem.

The sample labelled as style "A" is classifiable under subheading 6404.19.50, HTSUSA, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, other, other. The applicable rate of duty is 48 percent ad valorem.

You should inform the inquirer of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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