Slipper, textile, open toe, open back. Sole, external surface

HQ 088305 February 11, 1991 CLA-2 CO:R:C:M 088305 DFC CATEGORY: Classification TARIFF NO.: 6405.20.9090 Ms. Tinka G. Andrade International Import Manager Meldisco, Division of Melville Corp. 933 Macarthur Boulevard, Mahwah, New Jersey 07430 RE: Slipper, textile, open toe, open back. Sole, external surface Dear Ms. Andrade: In a letter dated October 12, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an infant's slipper produced in China. A sample was submitted for examination. FACTS: The sample is a child's open toe and open back textile slipper. The textile sole has numerous small plastic "dots" placed on an otherwise textile sole. By our measurement the plastic "dots" are well under 1/32 inch thick. They are usually about 1/8 inch in diameter and are spaced apart (measured from on center) approximately 4/18 (.22) inch from side to side and 1/5 (.2) inch along the diagonals. The sample has a rigid cardboard insole, but its under surface is covered by an approximately 1/8 inch thick layer of foam rubber or plastic so the surface of the sole is "moderately" flexible. ISSUE: What is the constituent material of the sole having the greatest surface area in contact with the ground? LAW AND ANALYSIS: In applying the 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." An examination of the surface area of the sole shows that the plastic "dots" cover less of the sole portion of the shoe than the textile material. This fact of itself is not conclusive that more textile material is in contact with the ground than plastic. However, as stated previously there is a layer of foam rubber or plastic beneath the surface of the outer sole which makes the sole flexible so that it is readily depressed. It appears that the weight of the wearer of the sandal would cause the "dots" to recede somewhat into the textile material with the result that more of the textile would be in contact with the ground than the plastic. HOLDING: The child's open toe and open back textile slipper is classifiable under subheading 6405.20.9090, HTSUSA, as other footwear, with uppers of textile materials, other. The applicable rate of duty is 12.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division 6cc AD NY Seaport 1cc James Sheridan NY Seaport 1cc DD Chicago 1cc DD Los Angeles 1cc DD Savannah 1cc DD Charleston 1cc Port Dir Atlanta cahill library/pehwp 088305