HQ 951166

January 27, 1993

CLA-2 CO:R:C:M 951166 NLP

CATEGORY: Classification

TARIFF NO.: 6404.20.40

District Director

United States Customs Service

Patrick V. McNamara Building

477 Michigan Avenue

Detroit, MI 48266

RE: Protest No. 3801-91-102236; slippers with uppers of textile

materials and plastic/rubber and outer soles of leather;

slippers that are less than 10% by weight of rubber and

plastics or not over 50% by weight of textile materials,

rubber and plastics; subheadings 6404.20.60 and 6405.20.90;

HRL 082614

Dear Sir:

The following is our response to the Protest and Request For

Further Review No. 3801-91-102236, dated August 14, 1991,

concerning the classification of slippers under the Harmonized

Tariff Schedule of the United States (HTSUS).

FACTS:

The products subject to protest are stuffed slippers that

resemble different animals. The following style numbers are at

issue: 530, 434, 460, 488, 660, 688, 657, 857, 858, 634 and 658.

Samples of style numbers 434, 460, 660, 657, and 634 were

submitted for our examination. Based on the samples and the

information before us, it appears that all of the slippers have

textile uppers and plastic eyes that vary in style and shape.

The outer soles of the slippers are either made of leather or

\"other than leather\".

The only information we have describing slipper style #530

is the International Footwear Association Footwear Retailers of

America Interim Footwear Invoice (IFI), which describes this

slipper as having a textile upper, a leather sole and being \"less

than 10% by weight of rubber and plastics or not over 50% by

weight of textile materials, rubber and plastics.\"

Style #434 is a slipper that resembles a cow and has a

textile upper and a leather sole. It has plastic eyes and a red

textile tongue. The IFI describes the slipper as being \"less

than 10% by weight of rubber and plastics or not over 50% by

weight of textile materials, rubber and plastics.\" According to

a laboratory report submitted by the protestant, the plastic eyes

on this slipper comprise 7.08% of the slipper\'s weight.

Style #460 is a slipper that resembles a duck with plastic

eyes. It has a leather sole and a textile upper. The IFI

describes the slipper as being \"less than 10% by weight of rubber

and plastics or not over 50% by weight of textile materials,

rubber and plastics.\" The laboratory report provided by the

protestant states that the plastic eyes comprise 1.32% of the

slipper\'s weight.

Style #488 is described by the IFI as having a textile upper

and a rubber or plastics outer sole and as \"being less than 10%

by weight of rubber and plastics or not over 50% by weight of

textile materials, rubber and plastics.\"

Style #660 is a slipper that resembles a duck with plastic

eyes. It has a leather sole and a textile upper. The IFI

describes the slipper as being \"less than 10% by weight of rubber

and plastics or not over 50% by weight of textile materials,

rubber and plastics.\" The protestant\'s laboratory report states

that the plastic eyes comprise 1.33% of the slipper\'s weight.

Style #688 is described on the IFI as having a textile

upper, a leather sole and as being \"less than 10% by weight of

rubber and plastics or not over 50% by weight of textile

materials, rubber and plastics.\"

Style #657 is a slipper that resembles a grey mouse. It has

a leather sole, a textile upper and plastic eyes. The

protestant\'s laboratory report states that the plastic eyes

comprise 7.72% of the slipper\'s weight.

Style #634 is a slipper that resembles a cow and it has a

leather sole, a textile upper and plastic eyes. The protestant\'s

laboratory report states that the plastic eyes comprise 7.10% of

the slipper\'s weight.

Styles 857, 858, and 658 are described on the IFI as having

textile uppers and soles made of a material other than leather,

composition leather, rubber or plastics.

Based on the information in the commercial invoice, it

appears that the subject slippers were liquidated under two

different subheadings. Styles 530, 434, 460, 488, 660 and 688

were liquidated under subheading 6404.20.60, HTSUS, which

provides for \"\[f\]ootwear with outer soles of rubber, plastics,

leather or composition leather and uppers of textile materials:

\[f\]ootwear with outer soles of leather or composition leather:

\[o\]ther.\" The rate of duty for slippers classified in this

subheading is 37.5% ad valorem. Styles 657, 857, 858, 634 and

658 were liquidated under subheading 6405.20.90, HTSUS, which

provides for \"\[o\]ther footwear: \[w\]ith uppers of textile

materials: \[o\]ther.\" The rate of duty is 12.5% ad valorem.

However, the CF 6445 stated that for the entries subject to

protest the \"appraised value or classification\" was in subheading

6404.20.60, HTSUS.

The protestant states that the slippers are classified in

subheading 6404.20.40, HTSUS, which provides for \"\[f\]ootwear with

outer soles of rubber, plastics, leather or composition leather

and uppers of textile materials: \[f\]ootwear with outer soles of

leather or composition leather: \[n\]ot over 50 percent by weight

of rubber or plastics and not over 50 percent by weight of

textile materials and rubber or plastics with at least 10 percent

by weight being rubber or plastics: \[v\]alued over \$2.50/pair.

The rate of duty is 10% ad valorem.

ISSUE:

What is the tariff classification of the subject slippers?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by

the General Rules of Interpretation (GRI\'s), taken in order. GRI

1 provides that classification shall be determined according to

the terms of the headings and any relative section or chapter

notes. In the event that the goods cannot be classified solely

on the basis of GRI 1, and if the headings and legal notes do not

otherwise require, the remaining GRI\'s may be applied, taken in

order.

Subheading 6404.20.40, HTSUS, provides for footwear with

outer soles of leather which are:

Not over 50 percent by weight of rubber or plastics and

not over 50 percent by weight of textile materials and

rubber or plastics with at least 10 percent by weight

being rubber or plastics.

Based on a prior Customs ruling, it is clear that this

subheading is limited to footwear with fabric uppers and leather

or composition leather soles which are under 10% by weight of

rubber or plastics or not over 50% by weight of textile

materials, rubber and plastics. See, Headquarters Ruling Letter

082614, dated October 17, 1988. Therefore, if the slippers with

the leather soles are under 10% by weight of rubber and plastics,

they would be classified in subheading 6404.20.40, HTSUS.

The information submitted with this protest is not clear.

Specifically, with the exception of slipper style #688, the style

numbers listed and analyzed in Customs laboratory report #3-90-

10636-015, dated August 17, 1990, do not match the style numbers

on the IFIs and the commercial invoice for the subject entries.

Therefore, to assist in the determination of the actual material

breakdown of the slippers by weight, the samples were submitted

to the Customs laboratory for analysis. We note that the

protestant has submitted a laboratory report on the sample

slippers, however, Customs cannot rely on outside reports which

may or may not utilize different testing methods and still remain

consistent in its tariff classification.

Customs laboratory report #3-93-10196-014, dated December 7,

1992, analyzed the sample slippers and found the following weight

breakdowns for each slipper:

Style #634 Weight in grams

uppers of textile

with a filling but no foam and/or eyes 140.2

without a filling, foam and/or eyes 75.9

sole

outer layer- 100% leather 17.6

foam filler- 100% plastics/rubber 7.4

nonwoven fabric- 100% man-made fibers 6.6

eyes

outer portion- 100% plastics/rubber 7.3

inner portion- 100% metal 2.1

inner foam layers- 100% plastics/rubber 1.6

Style #434

uppers of textile

with a filling but no foam and/or eyes 155.6

without a filling, foam and/or eyes 81.7

sole

outer layer- 100% leather 22.0

foam filler- 100% plastics/rubber 8.4

nonwoven fabric- 100% man-made fibers 9.0

eyes

outer portion- 100% plastics/rubber 7.0

inner portion- 100% metal 2.2

inner foam layers- 100% plastics/rubber 2.0

Style \# 460

uppers of textile

with a filling but no foam and/or eyes 226.1

without a filling, foam and/or eyes 82.2

sole

outer layer- 100% leather 13.1

foam filler- 100% plastics/rubber 7.2

nonwoven fabric- 100% man-made fibers 7.1

eyes

outer portion- 100% plastics/rubber 1.2

inner portion- 100% metal 1.2

Style \# 660

uppers of textile

with a filling but no foam and/or eyes 198.3

without a filling, foam and/or eyes 77.9

sole

outer layer- 100% leather 20.7

foam filler- 100% plastics/rubber 7.2

nonwoven fabric- 100% man-made fibers 7.4

eyes

outer portion- 100% plastics/rubber 1.3

inner portion- 100% metal 1.3

Style #657

uppers of textile

with a filling but no foam and/or eyes 129.1

without a filling, foam and/or eyes 72.4

sole

outer layer- 100% leather 18.8

foam filler- 100% plastics/rubber 6.6

nonwoven fabric- 100% man-made fibers 6.9

eyes

outer portion- 100% plastics 7.7

inner portion- 100% metal 2.2

Based on the laboratory findings, the five sample slippers

are less than 10% by weight of rubber or plastics. Therefore,

they are classified in subheading 6404.20.40, HTSUS. As we do

not have the samples for the other styles of slippers and the

information included in the file is incomplete, we view the

sample slippers as representative of the other styles subject to

protest. Thus, it is our position that the remaining slippers

are also classified in subheading 6404.20.40, HTSUS.

HOLDING:

The protest should be granted in full. A copy of this

decision should be attached to the Customs Form 19 and provided

to the protestant as part of the notice of action on the

protest.

Sincerely,

John Durant, Director

Commercial Rulings Division