HQ 087204: Slippers

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 087204

                          June 22, 1990

CLA-2 CO:R:C:G  087204 NLP

CATEGORY: Classification

TARIFF NO:  6404.19.9090

Ms. Deborah Riding
Customs Brokerage Department Manager
Kuehne & Nagel, Inc.
8801 Bellanca Avenue
Los Angeles, CA  90045

RE: Slippers

Dear Ms. Riding:

     This is in response to your letter of April 9, 1990, on
behalf of ASL Distribution Co., Inc., requesting a classification
of an infant's shoe, manufactured in West Germany, under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).  A sample was submitted for our examination.

FACTS:

     The infant's shoe has a multicolored textile upper which
ends above the ankle, and which has a hook and loop closure.  The
upper has two round suede leather patches at the closure as well
as a suede leather heel bumper.   In addition, the shoe has a
suede leather band, 3/4 of an inch wide, which goes around the
bottom of the upper, from one end of the heel bumper to the
other.  The outer sole of the shoe is composed of a suede
leather material which is covered with a thick rubber design made
up of rows of dots at the heel and toe area and a caricature, a
stick figure drawing of a child.  The design is applied to the
outer sole, and the outer sole is attached to the upper by means
of the suede band mentioned above.  The shoe also has a felt
midsole.

ISSUES:

     Whether the outer sole of the infant's shoe is of
rubber/plastic or suede leather.

     Whether the upper of infant's shoe is of textile material or
suede leather.

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     Classification of goods in Chapter 64, HTSUSA, which
provides for footwear, is determined by the materials that
comprise the outer soles and uppers of the footwear.  Note 4(b)
to Chapter 64, HTSUSA, states that the constituent material of
the outer sole shall be taken to be the material having the
greatest surface 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 examples in Note 4(b) to Chapter 64, HTSUSA.  Therefore,
the traction dots are part of the material of the outer soles and
they must be considered in determining the composition of the
outer sole.

     In the instant case, the felt midsole of the shoe reduces
the rigidity of the suede leather part of the sole.  As a result,
the dotted areas on the sole may recede somewhat when the shoe
is worn.  Therefore, some of the leather material on the outer
sole will come into contact with the ground when the slipper is
worn.

     It is our position that, even though some of the leather
material on the shoe's sole will touch the ground, the
rubber/plastic comprises the constituent material of the outer
sole for classification purposes.  While the rigidity or
flexibility of a sole is an important factor in determining the
material of the outer sole it is not the only factor to be
considered.  Other factors to consider include the ground
surface, the weight of the wearer and the size, shape and
placement of the dots on the sole.

     The rubber/plastic dots are thicker than 1/32 inch and the
dots in the sole and the heel patterns are 3/16 to 1/8 of an inch
apart (on center).  The caricature covers about three fifths of
the length of the sole and the traction dots cover an additional
fifth.  Since the dots are spaced close together and cover most
of the outer sole, the rubber/plastic design and dots will have
the greatest area in contact with the ground and comprise the
constituent material of the outer sole for classification
purposes.

     Moreover, it is our position that the upper is comprised of
a textile material and not suede leather.  Note 4 (a) to Chapter
64, HTSUSA, states that:



     The material of the upper shall be taken to be the
     constituent material having the greatest external surface
     area, no account being taken of accessories or
     reinforcements such as ankle patches, edging, ornamentation,
     buckles, tabs, eyelet stays or similar attachments.

Furthermore, General Explanatory Note (D) to Chapter 64 states,
in pertinent part:

     If the upper consists of two or more materials,
     classification is determined by the constituent material
     which has the greatest external surface area, no account
     being taken of accessories or reinforcements such as ankle
     patches, protective or ornamental strips or edging, other
     ornamentation ( e.g. tassels, pompoms or braid), buckles,
     tabs, eyelet stays, laces or slide fasteners.

     It is Customs position that the term "accessories and
reinforcements" although not fully defined, includes any
additional material added to an otherwise completed upper
material.  Moreover, when determining the external surface of a
shoe for tariff purposes, pieces of material that are attached to
a shoe may only be excluded or included as a whole.  In no
instance may only part of an item be excluded or included from
the upper.

     In determining what constitutes the external surface of the
upper of the booty we need to exclude the accessories and
reinforcements.  First, we exclude the suede leather band which
goes around the bottom of the upper.  The removal of this piece
only exposes additional areas of the completed textile upper and
is, therefore, a reinforcement.   Second, the suede leather
bumper is excludable as a reinforcement.  Finally, the two round
suede leather patches at the closure are excluded because they
are ornamental.

     As a result of the above exclusions, it is apparent
that the textile material comprises the greatest external surface
area of the shoe's upper, rather than the leather suede
components.  Thus, the instant footwear is classifiable in
Heading 6404, which provides for footwear with outer soles of
rubber or plastic and uppers of textile materials.

 HOLDING:

     The children's booties are classifiable in subheading
6404.19.9090, HTSUSA, which provides for footwear with outer
soles of rubber or plastics and uppers of textile materials,
other, valued over $12/pair, for other persons.  The rate of



duty is 20 percent ad valorem.  If the booties are valued over
$6.50/pair, but not over $12/pair, they would be classified in
6404.19.80, HTSUSA, with duty at the rate of 90 cents/pair + 20
percent ad valorem.

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division