CLA-2 RR:CR:TE 962519 jb
Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731
RE: Decision on Application for Further Review of Protest No. 2704-98-100242; classification of children’s slippers with traction dots
Dear Sir:
This is a decision on an application for further review of a protest timely filed by Grunfeld, Desiderio, Lebowitz & Silverman, on behalf of Advantage Products LLC, against your classification decision with respect to certain children’s slippers with traction dots. The entry at issue was liquidated on January 30, 1998.
FACTS:
The subject merchandise, referenced style number E3028-0- Stock number 4653, is a child’s slipper with hook and loop strap closure and features the words “Sleeping Beauty, Good Times” and a picture of a young girl holding a flower inside of a heart shaped design on the front of the shoe. The subject merchandise was classified by you under subheading 6404.19.5015, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), in the provision for footwear with outer soles of rubber or plastics. The Protestant argues that this classification is in error and that the proper classification for this merchandise is in subheading 6405.20.90, HTSUS, in the provision for footwear with outer soles of textile. The Protestant believes classification in heading 6405, HTSUS, is appropriate because in his opinion, the textile material which partly makes up the outer sole has the greatest surface area in contact with the ground. In support of this position the Protestant submits results obtained from testing in a private laboratory which state the subject merchandise is composed of an outer sole which is 77 percent textile and 23 percent rubber/plastic.
The subject merchandise was also subject to testing by Customs Office of Laboratory and Scientific Services. The results of that testing is discussed in the analysis that follows.
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.
Chapter 64, note 4(b) states that “[t]he 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.” The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to chapter 64, HTSUSA, state that the outer sole is that part of the footwear which, when in use, is in contact with the ground.
In reviewing merchandise pursuant to the notes specified above, the focus of such an examination is on the outer surface of the outer sole. The subject slippers feature an outer sole that consists of both plastic (traction dots) and textile. Applying the legal standard and the EN guidance discussed above, the plastic traction dots are “attached” to the outer surface of the outer sole. The traction dots are not akin to the “spikes, bars, nails, protectors or similar attachments” enumerated in chapter 64, note (b) and thus they must be taken into consideration when determining the constituent material on the outer sole having the greatest contanct witht the ground. As such, the proper classification determination is contingent on whether the plastic or the textile has the greatest contact with the ground.
Customs has issued many rulings on this type of merchandise in the past. In those rulings, in addition to much “discussion” on different criteria which will vary from shoe to shoe (including the rigidity (or lack thereof) of the sole) the analysis has focused on the design of the plastic traction dots. That is to say, the determinative factor to the ultimate classification, is the size of the traction dots featured on the particular shoe and their placement on the outer sole. Accordingly, laboratory analysis of the plastic/textile combination will indicate the material with the greatest percentage in contact with the ground.
In the case of the subject merchandise, results of Customs laboratory testing reveals the following:
The slipper has an outer sole of woven textile material that appears symmetrically covered with rubber/plastic traction dots. 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....
The external surface area of the outer sole excluding the textile band is 78.4 percent textile material and 21.6 percent rubber/plastic.
For classification purposes the external surface area of the upper (ESAU) was determined. The ESAU excluding accessories is 100 percent textile material. The ESAU including accessories is 90.5 percent textile material and 9.5 percent rubber/plastic. The textile upper is composed predominantly of vegetable fiber (cotton). The textile band is composed of man-made fiber (polyester).
As the subject merchandise has been found to have a composition of 78.4 percent textile material on the outer sole, the Protestant’s claim that the subject merchandise should be classified in the provision for footwear with outer soles of textiles is valid and the protest should be granted with respect to this claim.
HOLDING:
The subject merchandise is correctly classified in subheading 6405.20.3090, HTSUSA, which provides for, other footwear: with uppers of textile materials: with uppers of vegetable fibers: for other persons. The applicable general column one rate of duty was 7.5 percent ad valorem at the time of entry.
The protest should be granted in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division