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HQ 962095




December 15, 2000

CLA-2 RR:CR:TE 962095 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.9090

Port Director
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Decision on Application for Further Review of Protest No. 1001-98-101541, filed June 1, 1998, Concerning the Classification of Infant Footwear with Plastic Traction Dots on Outer Sole; Note 4(b) to Chapter 64, HTSUSA

Dear Sir:

This is a decision on an application for further review (AFR) of a protest timely filed against your decision in the classification and liquidation of two entries of infant shoes that were entered in September 1997.

FACTS:

You classified the merchandise in subheading 6404.19.5015, HTSUSA, the provision 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: Other: Valued not over $3/pair [3 dollars per pair]: Other, House slippers,” with a general column one duty rate of 48 percent ad valorem.

The protestant claims that the goods should be classified in subheading 6405.20.9090, HTSUSA, the provision for “Other footwear: With uppers of textile materials: Other, Other: For other persons,” with a general column one duty rate of 12.5 percent ad valorem.

The footwear at issue is described in the protest/AFR as “Textile Slippers-Style Prewalker Canvas Soft Soles,” and on manufacturer’s invoices as “Baby Looney Tunes Prewalker.” The sample is an infant’s lace-up shoe with closed toe and heel. The shoe resembles not a house slipper but a sneaker. It bears both the name “Baby Sylvester” and the cartoon likeness of that “Looney Tunes” feline character. The shoe’s upper is composed of both rubber/plastic materials and textile materials. The textile materials predominate. The outer sole, which is fairly rigid, is composed of textile materials to which are attached numerous, evenly-spaced “traction dots” that are composed of polyvinyl chloride (PVC) plastic. Measurements and visual examination of the outer sole indicate that the dots measure approximately 3/16 of an inch in diameter. They are spaced approximately 3/8 of an inch apart on center (i.e., measured from the center of one dot to the center of the adjoining dot) from side to side, and 1/4 of an inch apart, on center, along the diagonals.

The protestant submits a report dated June 18, 1998, of laboratory analysis performed by Customs Science Services, Inc. The sample tested is said to have been taken from one of the two entries subject to the protest/AFR. The sample is identified as “Baby Sylvester: Red/White Infant’s ‘Athletic Shoe’ with a ‘Traction Dot’ Outer Sole.” In pertinent part, the report’s findings are stated as follows:

The plastic dots are flat on the fabric side and slightly rounded on the outside, resembling a flattened hemisphere. They are about 2 millimeters (mm) in diameter, 0.8 mm thick, and are in a diamond pattern about 6+ mm on centers. They cover about 7% of the area of the outer sole. The sole from outsole to insole (sock lining) consists of the traction dot-fabric layer; a layer of paperboard about 1 mm thick; a layer of firm white cellular RP not quite 2 mm thick; a layer of loose white cellular RP not quite 3 mm thick; and, as the insole, a layer of textile fabric. The material of the outer sole having the greatest area in contact with the ground as the shoe is worn, taking into account the probable weight of the wearer.is textile material.

ISSUE:

Whether for classification purposes, the infant shoes are considered to have outer soles of rubber/plastics material or of textile materials.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. The EN to chapter 64, HTSUSA, state that it is the constituent material of the outer sole and of the upper which determines classification in headings 6401 to 6405. With respect to the constituent material of the outer sole, note 4(b) to chapter 64 states: 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.

Although the plastic traction dots are “attached” to the outer surface of the outer sole, they are not like the “spikes, bars, nails, protectors or similar attachments” named in note 4(b) to chapter 64. The dots must be taken into account in determining the constituent material of the outer sole. Classification of the infant shoe is therefore dependent on whether the rubber/plastic material or the textile material will have the greatest contact with the ground.

In Headquarters Ruling Letters (HQ) 963604 and HQ 963737, both dated March 29, 2000, and both published on April 19, 2000, in the Customs Bulletin, Volume 34, Number 16, this office revoked New York Ruling Letters (NY) E82374 (dated June 10,

1999) and NY E88932 (dated December 17, 1999), respectively. We noted that Customs had issued many rulings concerning children’s footwear with traction dots, and that those rulings had contained much “discussion” as to different and varying criteria, including a sole’s rigidity or lack thereof. We stated that the focus of analysis, however, is the outer surface of the sole, the design of the plastic traction dots, and that the determinative classification factor is the size and placement of the dots on a particular shoe.

In HQ 963604, it was found that the dots were slightly rounded on the ground contact side, flat on the other side, and that they measured approximately 2 mm in diameter. In HQ 963737, the dots measured approximately 1/36 of an inch in thickness, 3/36 of an inch in diameter, and were spaced approximately 1/4 of an inch apart on center. In both cases, laboratory analysis of the outer soles revealed surface percentages of approximately 89 percent textile materials and 11 percent rubber/plastic materials. The constituent material with the greatest surface area in contact with the ground in both cases was found to be textile material, not the rubber/plastic material of the slightly rounded traction dots. The footwear subject to both of the rulings was therefore reclassified from heading 6404 to subheading 6405.20.3090, HTSUSA.

In HQ 962519, dated December 10, 1999, children’s footwear with plastic traction dots was classified under heading 6405, HTSUSA, based on analysis similar to that set forth above. The dots in that case were found to measure approximately 1/8 inch in diameter, between 1/64 inch and 1/32 of an inch in thickness, and were spaced apart (on center) 1/4 of an inch from side to side and 1/5 of an inch apart along the diagonals. The external surface area of the outer sole was found to be approximately 78 percent textile material and 22 percent rubber/plastic.

In light of this sample shoe’s similarity to the footwear subject to the rulings discussed above, and of our analysis focusing on the design, size, and placement of the traction dots on the outer surface of the sole, we find that the constituent material with the greatest surface area in contact with the ground is textile material. The infant footwear is thus classified in subheading 6405.20.9090, HTSUSA.

HOLDING:

The infant footwear described as “Textile Slippers - Style Prewalker Canvas Soft Soles,” and further identified as the “Baby Looney Tunes Prewalker” is classified in
subheading 6405.20.9090, HTSUSA, the provision for “Other footwear: With uppers of textile materials: Other, Other: For other persons.” The general column one duty rate is 12.5 percent ad valorem.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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