CLA-2 CO:R:C:M 089250 NLP
Mr. John M. Peterson
Neville, Peterson & Williams
39 Broadway
New York, New York 10006
RE: Slippers with uppers of textile and outer soles of
textile which are covered with rubber/plastic traction
lines; Heading 6404; Heading 6405; HRL 087619; HRL 088962;
HRL 085585; HRL 086246
Dear Mr. Peterson:
This is in response to your letter of April 24, 1991,
requesting a tariff classification under the Harmonized Tariff
Schedule of the United States (HTSUS) for slippers with traction
lines on their outer soles. Samples of the slippers were
submitted for our examination.
FACTS:
The merchandise at issue consists of various styles of
slippers with uppers and applied outer soles of textile that are
made in Taiwan, the People' Republic of China and South Korea.
The outer soles of the slippers are soft and fully flexible. An
application of rubber/plastics material in the form of wavy
stylized tread has been printed onto the applied outersole of
each slipper. These traction lines are distributed over the
entire surface of the outer soles. The rubber/plastic traction
lines are less than 1 mm in thickness. The slippers also have
textile insoles and padded foam plastic midsoles.
The styles of the slippers are more fully described below:
STYLE 3135: is a women's slipper with an upper comprised
60% by weight of cotton and 40% by weight of polyester. The
fabric has been napped to give it the look of velour. A textile
bow and button are affixed to the top front of the upper. The
slipper has a velour textile insole and a foam plastic midsole.
The slipper has an applied fabric outer sole that is comprised
60% by weight of cotton and 40% by weight of polyester. A series
of rubber/plastic traction lines cover the outer sole of the
slipper. These lines start approximately 1/4 of an inch from the
edge of the outer sole on each side. The lines start
approximately 1/2 of an inch from the top and 1/4 of an inch from
the bottom of the edge of the outer sole. The traction lines are
less than 1 mm in thickness and are spaced on center
approximately 1/8 of an inch apart. About three quarters of the
way down on the outersole the word "totes" is spelled out in
rubber/plastic materials.
STYLE 3137: is a women's slipper with an upper and outer
sole made of 60% cotton and 40% polyester. It differs from style
3135 in that it has a textile upper which rises over the ankle
and it does not have a textile bow.
STYLE 3138: is a women's slipper that is made of the same
materials, has the same midsole and outer sole construction as
the other two slippers. The upper of this style rises to the
ankle and is made of a quilted construction. The upper has a
knit cuff which folds down.
STYLE 3142: is a women's slipper with a midsole and outer
sole construction that is the same as the other slippers. The
slipper's upper and outersole are made from 100% nylon/spandex
material.
The rubber/plastic traction line placement and design on the
outersole is the same in all these slippers.
STYLE 3118: is a girls' slipper that has an upper, inner
sole and outer sole made of 60% cotton and 40% polyester
material. It has a foam plastic midsole. A small textile
rosette is affixed to the top front portion of the upper. The
outer sole has applied to it the same wavy rubber/plastic
traction lines and word "totes" as on the women's slippers.
STYLE 3160: is designed to be worn by a small girl. It has
an upper, inner and outer sole composed of 60% by weight of
cotton and 40% by weight of polyester. It has a foam plastic
midsole. The outer sole has applied to it the wavy
rubber/plastic traction lines. These lines start approximately
1/8 of an inch from the edge of the outersole on each side. The
lines start approximately 1/4 of an inch from the top and 1/8 of
an inch from the bottom of the outersole. About three quarters
of the way down on the outersole the word "totes" is spelled out
in rubber/plastic materials.
ISSUE:
Whether the constituent material of the outer soles of the
slippers are of textile or rubber/plastic for tariff
classification purposes.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
in accordance with the terms of the headings and any relative
section or chapter notes.
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 that 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 plastic traction lines or
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 lines or 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 slippers' outer soles, the slippers would be
classifiable in subheading 6405.20, HTSUSA, which provides for
other footwear, with uppers of textile materials. If the
rubber/plastic traction lines are the constituent material of the
outer soles, the slippers 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.
A Customs laboratory analysis was performed on style 3135
(which is representative of the other styles of women's
slippers), style 3118 and style 3160, to determine the percentage
of the external surface area of the sole covered by textile
fabric and rubber/plastic traction lines. The laboratory results
are as follows:
Style 3135- the textile portion covers 63% of the
external surface area of the outer sole; the
rubber/plastic lines cover 37% of the
external surface area of the outer sole.
Style 3118- the textile portion covers 65% of the
external surface area of the outer sole; the
rubber/plastic lines cover 35% of the
external surface area of the outer sole.
Style 3160- the textile portion covers 62% of the
external surface area of the outer sole; the
rubber/plastic lines cover 38% of the
external surface area of the outer sole.
It is your position that the textile fabric is the
constituent material having the greatest surface area in contact
with the ground. You note that the outer sole material for the
slipper is soft, flexible textile fabric and that each slipper
features a flexible foam plastic midsole. Accordingly, the
traction areas on the sole recede somewhat when the slipper is
worn. In support of this, you cite HRL 086246 dated April 20,
1989, which dealt with the classification of a slipper with a
textile upper and an outer sole of textile fabric with plastic
traction dots and a cardboard midsole filler. The slipper had a
thin layer of foamed rubber or plastics between the dotted outer
sole and the cardboard midsole that made the sole a little less
rigid and more flexible. HRL 086246 stated that "as a result,
the dotted areas on the sole may recede somewhat when the slipper
is worn." Though HRL 086246 held that the plastic traction dots
were the constituent material in contact with the ground, the
above proposition is especially relevant when the slipper is soft
and fully flexible. In addition, you cite HRL 085585 dated
December 21, 1989, in which a slipper with a soft outer sole of a
textile fabric with plastic traction dots was classified in
heading 6405, HTSUS.
Headquarter's Ruling Letter (HRL) 087619, dated October 5,
1990, dealt with the classification of slippers with a soft and
flexible outer sole made of textile fabric that was covered with
rubber/plastic traction dots. This ruling held that because the
sole was soft and padded and the dots were small and widely
spaced, more textile than plastic touched the ground. Therefore,
the slippers were classified in subheading 6405.20.90, HTSUS.
See also, HRL 088962, dated August 2, 1991.
As the laboratory report in this case reveals, the
rubber/plastic traction lines cover less of the external surface
area of the outer sole than the textile portion. Moreover, the
textile soles are soft and flexible. Therefore, under the weight
of any wearer, the rubber/plastic traction lines would not
prevent the textile material in its totality from being in
contact with the ground. Thus, it is our position, that the
constituent material of the outer sole of the slippers is the
textile. Styles 3135, 3137, 3138 and 3160 are classified in
subheading 6405.20.30, HTSUS, as the uppers primarily consist of
vegetable fibers. As the upper of style 3142 is composed of 100
percent nylon/spandex material, it is classified in subheading
6405.20.90, HTSUS.
In addition, you have submitted information suggesting that
both Canada and Germany customs officials would disregard the
traction lines as accessories and would, therefore, classify the
slippers in heading 6405. While we disagree that the traction
lines are considered accessories or reinforcements pursuant to
Legal Note 4(b) to Chapter 64, HTSUS, it is noted that these
countries ultimately classified the slippers in the same
heading; heading 6405.
HOLDING:
Styles 3135, 3137, 3138, 3118 and 3160 are classified in
subheading 6405.20.30, HTSUSA, which provides for other footwear,
with uppers of textile materials, with uppers of vegetable
fibers. The rate of duty is 7.5 percent ad valorem.
Style 3142 is classified in subheading 6405.20.90, HTSUSA,
which provides for other footwear, with uppers of textile
materials, other. The rate of duty is 12.5 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division