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HQ 951936

June 17, 1992

CLA-2 CO:R:C:M 951936 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.30

Ms. Mary E. Keller
A.W. Fenton Company, Inc.
1452 Donaldson Road
Erlanger, KY 41018-1025

RE: Footwear; Children's Booties; Rubber Traction Dots; Chapter 64, Note 4(b); 6405.19

Dear Ms. Keller:

Your inquiry of March 23, 1992, to the District Director, Cleveland, Ohio, concerning the classification of children's booties under the Harmonized Tariff Schedule of the United States (HTSUS) has been referred to Customs Headquarters for a reply.

FACTS:

The merchandise consists of children's booties. The upper is made of cotton, and the outer sole is made of a textile material with numerous rubber dots placed upon it for traction purposes. The dots are approximately 1/8 inch in diameter and are spaced, on center, approximately 1/6 inch apart. Approximately 45 percent of the surface area of the outer sole is covered with rubber dots.

ISSUE:

What is the proper classification of the subject children's booties under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Chapter 64, note 4(b), HTSUS, provides that "[t]he constituent material of the outer sole shall be taken to be the material having the greatest surface 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 traction dots to be excludable as accessories or reinforcements since they do not resemble the given exemplars in chapter 64, note 4(b), HTSUS. 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 booty's outer sole, the booty would be classifiable in subheading 6405.20, HTSUS, which provides for: "[o]ther footwear: [w]ith uppers of textile materials." If the rubber traction dots are the constituent material of the outer sole, the booty would be classifiable in subheading 6404.19, HTSUS, which provides for: "[f]ootwear with outer soles of rubber or plastics . . . and uppers of textile materials."

An examination of the surface area of the outer sole shows that the rubber dots only cover 45 percent of the surface area of the booty's outer sole. This fact in itself is not conclusive that more fabric is in contact with the ground than plastic. However, the construction of the booty makes the outer sole flexible so that is readily depressed. It appears that the weight of the wearer of the booty would cause the rubber dots to recede somewhat into the textile material with the result that more of the fabric would be in contact with the ground than rubber.

Therefore, since the constituent material of the outer sole is the textile material, the booty is classifiable under subheading 6405.20.30, HTSUS, which provides for: "[o]ther footwear: [w]ith uppers of textile materials: [w]ith uppers of vegetable fibers."

HOLDING:

The booty is classifiable under subheading 6405.20.30, HTSUS. The general, column one rate of duty is 7.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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