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HQ 963737




March 29, 2000

CLA-2 RR:CR:TE 963737 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.3090

Mr. Rafael Hernandez
The Disney Store, Inc.
101 North Brand Boulevard
Suite 1000
Glendale, CA 91203-2671

RE: Revocation of NY E88932; classification of infants’ shoes with traction dots

Dear Mr. Hernandez:

On December 17, 1999, our New York office issued to you New York Ruling Letter (NY) E88932, classifying certain infants’ shoes with traction dots in heading 6404, Harmonized Tariff Schedule of the United States (HTSUS). This letter is to inform you that the classification of that merchandise in heading 6404, HTSUS, is in error. The correct classification for that merchandise is heading 6405, pursuant to the analysis which follows below.

FACTS:

The subject merchandise is described as an infant's "Pooh" textile shoe and is made up of a 100% cotton upper surface and a 100% cotton outer sole covered with an array of rubber/plastic protruding traction dots. The shoe has a closed heel and closed toe, and features a hook and loop type closure across the instep which secures the shoe to the foot.

In NY E88932 the subject merchandise was classified in heading 6404, HTSUS, based on a determination that the plastic dots constituted the greatest surface area in contact with the ground. However, upon review of the subject merchandise by our Customs Office of Laboratory and Scientific Services, results obtained from that testing reveal that the textile constitutes the greatest surface area in contact with the ground. A more detailed explanation of the results obtained from the laboratory testing are discussed in the analysis that follows below.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.

Chapter 64, note 4(b) states 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.” The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to chapter 64, HTSUSA, state that the outer sole is that part of the footwear which, when in use, is in contact with the ground.

In reviewing merchandise pursuant to the notes specified above, the focus of such an examination is on the outer surface of the outer sole. The subject shoes feature an outer sole that consists of both rubber/plastic (traction dots) and textile. Applying the legal standard and the EN guidance discussed above, the traction dots are “attached” to the outer surface of the outer sole. The traction dots are not akin to the “spikes, bars, nails, protectors or similar attachments” enumerated in chapter 64, note 4(b) and thus they must be taken into consideration when determining the constituent material on the outer sole having the greatest contact with the ground. As such, we must compare which constituent material found on the outer sole, that is, the rubber/plastic or the textile, has the greatest contact with the ground.

Customs has issued many rulings on this type of merchandise in the past. In those rulings, in addition to much “discussion” on different criteria which will vary from shoe to shoe (including the rigidity (or lack thereof) of the sole), the analysis has focused on the design of the plastic traction dots. That is to say, a determinative factor to the ultimate classification, is the size of the traction dots featured on the particular shoe and their placement on the outer sole. Accordingly, laboratory analysis of the rubber/plastic and textile combination will indicate the material with the greatest percentage in contact with the ground.

In the case of the subject merchandise, results of Customs laboratory testing reveals the following:

The external surface area of the upper is composed of the following: excluding accessories and reinforcements: 100 % textile material; including accessories and reinforcements; 99.0% textile material and 1.0% rubber/plastic. The textile material is 100 percent cotton, a vegetable fiber.

The external surface area of the sole is composed of 89.0% textile material and 11.0% rubber/plastic (dots). The dots are approximately 1/36 inch thick, 3/36 inch in diameter and spaced diagonally approximately ¼ inch apart on the center. There is no cardboard insert/stabilizer in the sole or insole.

As the subject merchandise is comprised of a composition of 89.0 percent textile material on the outer sole and features small plastic/rubber traction dots which only cover 11.0 percent rubber/plastic by percent area, the subject merchandise should be classified in the provision for footwear with outer soles of textiles.

HOLDING:

NY E88932 dated December 17, 1999, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

The subject merchandise is correctly classified in subheading 6405.20.3090, HTSUSA, which provides for, other footwear: with uppers of textile materials: with uppers of vegetable fibers: for other persons. The applicable general column one rate of duty is 7.5 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division


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