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HQ 959463




October 11, 1996
CLA-2 RR:TC:TE 959463 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.3514

Mr. Lewis Fischer
Compliance Officer
MSAS
2265 East El Segundo Blvd.
El Segundo, CA 90245

RE: Slippers with uppers of textile and outer soles of textile which are covered with plastic traction dots; Subheading 6405.20; Subheading 6404.19

Dear Mr. Fischer:

This is in reply to your letter dated June 10, 1996, requesting a classification ruling on a pair of slippers, style C1569, under the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).

FACTS:

The subject merchandise is a pair of open back slippers. The upper portions are constructed of cotton terry cloth fabric. The midsole consists of a layer of flexible plastic foam approximately
3/4 of an inch thick and is covered with cotton terry cloth fabric. The outer sole is made of woven textile fabric and is covered with plastic traction dots that are spaced approximately 1/16 of an inch apart.

ISSUE:

Whether the constituent material of the outer soles of the slippers is textile or plastic for tariff classification purposes.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of
Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined in accordance with the terms of the headings and any relative section or chapter notes.
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, states that the
constituent material of the outer sole shall 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 plastic traction lines or dots to be excludable as accessories or reinforcements since they do not resemble the given exemplars in note 4(b). Therefore, we consider the traction dots as part of the material of the outer sole and they must be considered in determining its composition pursuant to Note 4(b).

Customs considers various factors in determining what is the constituent material of the outer sole: the rigidity or flexibility of the sole; the ground surface; the weight of the wearer; and the size, shape and placement of the traction dots on the sole. Headquarters Ruling Letter (HQ)
086246, dated April 20, 1990. If textile material is deemed to be the constituent material of the outer sole, the slippers are classifiable in subheading 6405.20, which provides for other footwear, with uppers of textile materials. On the other hand, if plastic is the constituent material of the outer sole, the slippers are classifiable in subheading 6404.19, which provides for footwear with outer soles of rubber or plastic and uppers of textile material, other.

In most cases, if footwear has a rigid sole covered with plastic traction dots that are spaced closely together, the plastic is considered the constituent material of the outer sole for classification purposes. HQ 084713, dated August 3, 1989. The soles in that case were constructed of canvas textile fabric with a cardboard midsole filler and were covered with plastic traction dots spaced approximately 1/4 of an inch apart. Slippers with less rigid soles were discussed in HQ 086246, dated April 20, 1990. Those slippers had a thin layer of foamed plastic between the outersole and cardboard midsole, thus allowing some of the textile material to contact the ground when worn. They were also covered with plastic traction dots spaced approximately 1/4 of an inch apart. In both of those cases, we held that plastic constituted the constituent material of the soles. See HQ 089801, dated December 13, 1991 and HQ 089660, dated December 11, 1991.

On the other hand, we held that textile fabric comprises the constituent material of the outer sole where the slipper has a rigid sole but the plastic traction dots are not raised or spaced closely together. HQ 088391, dated December 13, 1991 (the outer sole consisted of wool felt material which was coated or impregnated with rubber and/or plastics,with traction dots laid out in groups of six in a rosette pattern), and HQ 087336, dated August 28, 1990 (the slippers had soft, flexible soles constructed of cotton twill, with traction dots spaced one inch apart).

In the instant case, the 3/4 inch foam midsole provides some rigidity to the soles of the slippers, although not as much as the cardboard midsoles in HQ 084713 and HQ 086246. However, the traction dots on the soles in question are spaced closer together than in those two cases.
Moreover, the traction dots protrude from the textile material, and they are spaced very closely together over the entire sole of the slipper. For these reasons, we find that the plastic material has the greatest surface area in contact with the ground and, therefore, constitutes the constituent material of the outer soles of the slippers.

HOLDING:

Slippers, style number C1569, are classified in subheading 6404.19.3515, HTSUSA, which provides for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other Footwear with open toes or heels...: Other: House slippers." They are dutiable at the column one general rate of duty at 37.5 percent ad valorem.

Your sample is being returned under separate cover.

Sincerely,

John Durant, Director
Tariff Classification Appeals
Division

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