HQ 962519

December 10, 1999

CLA-2 RR:CR:TE 962519 jb

**CATEGORY: Classification**

**TARIFF NO.: 6405.20.3090**

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