HQ 951166: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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