[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Notices]
[Pages 36301-36303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12939]


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DEPARTMENT OF THE TREASURY

Customs Service


Receipt of Domestic Interested Party Petition Concerning Tariff 
Classification of Textile Slippers

AGENCY: United States Customs Service, Department of the Treasury.

ACTION: Notice of receipt of domestic interested party petition; 
solicitation of comments.

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SUMMARY: Customs has received a petition submitted on behalf of a 
domestic interested party requesting the reclassification of certain 
imported slippers with uppers of textile materials and outer soles that 
consist of durable rubber/plastic, the surface of which is covered with 
a thin layer of textile material. Customs has classified this footwear 
under subheading 6405.20.90, Harmonized Tariff Schedule of the United 
States (HTSUS), which has a column one rate of duty of 12.5 percent ad 
valorem. The petitioner contends that the footwear should be classified 
under subheading 6404.19.35, HTSUS, which has a column one rate of duty 
of 37.5 percent ad valorem. The petitioner argues that the textile 
material adhered to the rubber/plastic is not plausible soling 
material, does not come into contact with the ground over the life-span 
of the slipper and constitutes a disguise or artifice. This document 
invites comments with regard to the correctness of the current 
classification.

DATES: Comments must be received on or before July 22, 2002.

[[Page 36302]]


ADDRESSES: Written comments may be addressed to, and inspected at, the 
U.S. Customs Service, Office of Regulations and Rulings, Attention: 
Commercial Rulings Division, 1300 Pennsylvania Avenue, NW., Room 3.4A, 
Washington, D.C. 20229.

FOR FURTHER INFORMATION CONTACT: Joe Freeman Shankle, Textiles Branch 
(202) 927-2379.

SUPPLEMENTARY INFORMATION:

Background

    This document concerns the tariff classification of certain 
imported footwear. The imported footwear is a slipper that has an upper 
of textile material and an outer sole composed of unit-molded rubber/
plastics with nubs measuring \1/4\ inch in diameter evenly spaced 
across its surface, over which is adhered a thin layer of textile 
fabric.
    A petition has been filed under section 516, Tariff Act of 1930, as 
amended (19 U.S.C. 1516), on behalf of an American manufacturer of 
slippers, requesting that Customs reclassify the imported slippers. 
Customs has classified this footwear under subheading 6405.20.90, 
Harmonized Tariff Schedule of the United States (HTSUS), as ``Other 
footwear: With uppers of textile materials: Other'' which has a column 
one rate of duty of 12.5 percent ad valorem. The petitioner contends 
that the footwear should be classified under subheading 6404.19.35, 
HTSUS, as ``Footwear with outer soles of rubber, plastics, leather or 
composition leather and uppers of textile materials: Footwear with 
outer soles of rubber or plastics: Other: Footwear with open toes or 
open heels; footwear of the slip-on type, that is held to the foot 
without the use of laces or buckles or other fasteners, the foregoing 
except footwear of subheading 6404.19.20 and except footwear having a 
foxing or foxing-like band wholly or almost wholly of rubber or 
plastics applied or molded at the sole and overlapping the upper: 
Other,'' which has a column one rate of duty of 37.5 percent ad 
valorem.
    Classification under the HTSUS is determined in accordance with the 
General Rules of Interpretation (GRI). GRI 1 provides that the 
classification of goods shall be determined according to the terms of 
the headings of the tariff schedule 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 may then be applied. The Harmonized 
Commodity Description and Coding System, Explanatory Notes (EN), 
represent the official interpretation of the Harmonized System at the 
international level (for the 4 digit headings and the 6 digit 
subheadings) and facilitate classification under the HTSUS by offering 
guidance in understanding the scope of the headings and the GRI. The 
EN, although not dispositive or legally binding, provide a commentary 
on the scope of each heading of the HTSUS, and are generally indicative 
of the proper interpretation of these headings. See T.D. 89-80, 54 FR 
35127, 35128 (August 23, 1989).
    Classification of footwear is essentially based upon the 
composition of the outer soles and uppers. Determinations regarding the 
constituent material of the outer sole of footwear are governed by Note 
4(b), Chapter 64, HTSUS, which 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.

    General EN (C) to Chapter 64 states that:

    The term ``outer sole'' as used in headings 64.01 to 64.05 means 
that part of the footwear (other than an attached heel) which, when 
in use, is in contact with the ground. The constituent material of 
the outer sole for purposes of classification shall be taken to be 
the material having the greatest surface area in contact with the 
ground. In determining the constituent material of the outer sole, 
no account should be taken of attached accessories or reinforcements 
such as spikes, bars, nails, protectors or similar attachments which 
partly cover the sole (see Note 4(b) to this Chapter).

    In New York Ruling Letter (NY) G89205, dated April 19, 2001, and NY 
G89960, dated April 19, 2001, Customs took the position that even 
though the purpose of the textile material on the surface of the soles 
was not explained, it is plausible soling material for footwear of this 
type, i.e., for indoor use exclusively. The textile material was found 
to have the greatest surface area in contact with the ground when the 
slipper is in use. In accordance with Note 4(b) to Chapter 64, HTSUS 
and with the guidance of the EN to Chapter 64, Customs classified the 
slippers under subheading 6405.20.90, HTSUS, as having outer soles of 
material other than rubber, plastics, leather or composition leather.
    The petitioner claims that the footwear should be classified in 
subheading 6404.19.35, HTSUS, as footwear having rubber or plastic 
outer soles. The petitioner asserts that the textile material applied 
to the sole of the slipper is not plausible soling material and 
constitutes impermissible tariff engineering.
    The petitioner conducted a ``wear test'' and an ``abrasion test'' 
to determine the durability of the textile material that comes into 
contact with the ground. The results of the wear test revealed that the 
textile material frayed and wore off of the nubs located at the ball 
and heel of the slipper after 30 days of normal use. The abrasion test 
revealed that the textile material first began to wear off after 10 
cycles. After 100 cycles, approximately 60% of the textile material was 
worn off. After 200 cycles, approximately 90% of the textile material 
was worn off. In contrast, the rubber/plastic that is covered by the 
textile material showed minimal wear when subjected to 200 cycles.
    The petitioner relies upon the EN to Chapter 64 which state that 
the outer sole ``means that part of the footwear * * * which, when in 
use, is in contact with the ground.'' (Emphasis in original). The 
petitioner asserts that because the textile material wears off in a 
relatively short period of time, the constituent material that is in 
contact with the ground over the life of the slippers is the rubber/
plastic, not the textile material.
    The petitioner further contends that the textile material overlying 
the rubber/plastic soles should be excluded from consideration when 
determining the constituent material of the outer sole. This argument 
is based on that portion of the EN to Chapter 64, restated here:

* * * In determining the constituent material of the outer sole, no 
account should be taken of attached accessories or reinforcements 
such as spikes, bars, nails, protectors or similar attachments which 
partly cover the sole * * *.

    The petitioner maintains that the thin layer of textile material 
overlying the ``rubber soles'' of the slippers is akin to an accessory 
or reinforcement and, therefore, cannot be considered as the 
constituent material of the outer sole.
    The petitioner also argues that the textile material on the outer 
soles of the slippers is not genuine soling material, but is an 
``artifice'' that must be disregarded. In support of this argument, the 
petitioner cites to United States v. Citroen, 223 U.S. 407 (1911), for 
the proposition that although articles are to be classified in the 
condition in which they are imported, this does not mean that a rate of 
duty can be escaped by resort to disguise or artifice. The petitioner 
also cites Heartland By-Products, Inc. v. United States, 264 F.3d 1126 
(Fed. Cir. 2001), in support of the argument that the application of 
the

[[Page 36303]]

textile material to the rubber/plastic sole is disguise and artifice. 
The petitioner further states that it is the rubber/plastic that gives 
the sole its rigidity and strength, thereby imparting the commercial 
identity of the slippers. Despite the adherence of the textile 
material, it is said that the footwear ``is not commercially considered 
a fabric soled slipper.'' Lastly, the petitioner contends that the 
textile material does not contribute to the salability or functionality 
of the slippers and should be ignored for classification purposes.

Comments

    Pursuant to Section 175.21(a), Customs Regulations (19 CFR 
175.21(a)), before making a determination on the matter, Customs 
invites written comments on the petition from interested parties.
    The domestic party petition, as well as all comments received in 
response to this notice, will be available for public inspection in 
accordance with the Freedom of Information Act (5 U.S.C. 552, 1.4, 
Treasury Department Regulations (31 CFR 1.4), and Section 103.11(b), 
Customs Regulations (19 CFR 103.11(b)), between the hours of 9 a.m. to 
4:30 p.m. on regular business days, at the U.S. Customs Service, Office 
of Regulations and Rulings, Commercial Ruling Division, 1300 
Pennsylvania Avenue, NW., 3rd Floor, Washington, DC.

Authority

    This notice is published in accordance with Section 175.21(a), 
Customs Regulations (19 CFR 175.21(a)), 19 U.S.C. 1516.

    Approved: May 17, 2002.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
Robert C. Bonner,
Commissioner of Customs.
[FR Doc. 02-12939 Filed 5-22-02; 8:45 am]
BILLING CODE 4820-02-Ps