Slippers with rigid outer soles of textile fabric which are covered with plastic/rubber traction dots; Heading 6404; Heading 6405

HQ 089801 September 13, 1991 CLA-2 CO:R:C:M 089801 CATEGORY: Classification TARIFF NO.: 6404.19.35 Mr. Leonard Satz Savant Customs Brokers & Freight Forwarders, Inc. 11 Broadway -Suite 1068 New York, NY 10004 RE: Slippers with rigid outer soles of textile fabric which are covered with plastic/rubber traction dots; Heading 6404; Heading 6405 Dear Mr. Satz: This is in response to your letter dated May 22, 1991, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for slippers with traction dots. A sample of the slipper was submitted for our examination. FACTS: The subject merchandise is a woman's slipper with an open toe and open back. The slipper has a textile upper that is padded with a layer of plastic foam and an insole composed of a layer of plastic foam that is covered with the same textile material as the upper. The slipper has an outer sole of woven textile covered with plastic dots and a cardboard midsole filler. The dots are approximately 1/8 inch in diameter, between 1/64 inch and 1/32 of an inch thick and are spaced apart (on center) 1/4 of an inch from side to side and 1/5 of an inch along the diagonals. In addition, the slipper has a layer, about 1/16 of an inch thick, of relatively dense expanded rubber or plastics between the dotted outersole and the cardboard midsole. ISSUE: Whether the outer sole of the slipper is of textiles or rubber and plastics for classification purposes. LAW AND ANALYSIS: 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, HTSUSA, 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. Customs does not consider these plastic traction 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 the composition of the outer sole. If the textile material is deemed to be the constituent material of the slipper's outer sole, the slipper would be classifiable in subheading 6405.20, HTSUSA, which provides for other footwear, with uppers of textile materials. If the rubber/plastic traction dots are the constituent material of the outer sole, the slipper would be classifiable in subheading 6404.19, HTSUSA, which provides for footwear with outer soles of rubber or plastic and uppers of textile material, other. HRL 084713, dated August 3, 1989, dealt with a slipper with a rigid sole. The whole sole of the slipper was covered with plastic traction dots that were approximately 1/4 inch apart (on center) from each other. That ruling held that the plastic traction dots had the greatest external surface area in contact with the ground and classified the slipper as having a predominately plastic/rubber outer sole. The slipper in the instant case is similar to the above slipper in that both slippers have rigid soles and plastic traction dots that cover the whole sole of the slipper and are 1/4 inch apart. The only difference between the slippers is that the slipper in the instant case has a thin layer of rubber or plastic between the outersole and the cardboard midsole. As a result, the dotted areas on the sole may recede somewhat when the slipper is worn. However, the rubber or plastics still comprise the constituent material of the outer sole for classification purposes. Furthermore, it is our observation that the rubber or plastics components of the slipper comprise more than 10 percent of the weight of the slipper. This is based on the presence in the slipper of the plastic foam padding in the upper and insole, the plastic outersole and the layer of plastic or rubber between the outersole and the midsole. As a result, the instant slipper is classified in subheading 6404.19.35, HTSUSA. HOLDING: The slippers are classified in subheading 6404.19.35, HTSUSA, which provides for footwear with outer soles or rubber or plastics, and uppers of textile materials, other, footwear with open toes or open heels. The rate of duty is 37.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division