CLA-2 CO:R:C:G HQ 085659 WAW

Edward B. Ackerman
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, N.Y. 10004

RE: Classification of children's bunny slippers

Dear Mr. Ackerman:

This is in response to your letter dated August 31, 1989, on behalf of Avon Products, Inc., requesting a tariff classification of "children's bunny slippers" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted with your request.

FACTS:

The subject merchandise is a children's textile bunny rabbit slipper. The slipper's upper, comprising the body, tail and outer ears of the rabbit, is composed of 100% plush nylon. The inner lining and sole of the slipper are composed of a woven fabric of 65% polyester and 35% cotton. The slippers are completely stuffed with polyfiber fill. In addition, two hard plastic eyes are stuck into the upper and stitched onto the surface of the upper is the shape of a nose and mouth of a rabbit. The outer sole is fully flexible and is comprised of 100% polyester fabric. There are vinyl traction dots attached to the outer surface of the slipper. Each traction dot is slightly raised and is approximately 3/32 inch in diameter and approximately 1/32 inch thick. The slipper will be imported from the People's Republic of China.

ISSUE:

Whether the outer sole is composed of textile or rubber and plastic for tariff purposes?

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 material that comprises the outer sole and the upper. 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 examples in Note 4(b). Thus, we consider the traction dots as part of the material of the outer sole and must be considered in determining the composition of the sole.

Based on prior rulings, it is Customs position that the surface of the outer sole of a slipper with traction dots is determined by the flexibility of the sole. For instance, in HRL 084713, dated August 3, 1989, Customs ruled that where the outer sole of the slipper is rigid and not flexible, the raised traction dots have the greatest external surface area in contact with the ground. However, in HRL 081150, dated November 5, 1987, Customs ruled, in a similar case, that where the outer sole of a slipper is flexible, the textile material and not the traction dots has the greatest external surface area.

In the instant case, since the outer sole of the slipper is flexible, it is apparent that the textile portion will come into full contact with the ground under the weight of the child. This is especially true since the traction dots in the case at issue are even smaller than the dots on the slippers in HRL 081150. Thus, it is the textile and not the nylon traction dots which comprises the constituent material of the outer sole for classification purposes, and the slipper is properly classifiable, in accordance with HRL 081150, under subheading 6405.20.9090, HTSUSA.

HOLDING:

The merchandise at issue is classifiable under subheading 6405.20.9090, HTSUSA, which provides for footwear, in which the soles' external surface is predominately other than rubber, plastic, leather or composition leather; in which the upper's external surface is predominately of textile material; in which the upper, by weight, predominately consists of fiber other than vegetable fiber or wool; and which has a line of demarcation between the sole and the upper. The applicable rate of duty is 12.5% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division