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