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HQ 083178


February 20, 1990

CLA-2 CO:R:C:G: 083178 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.90.9000

Mr. W.T. Corcoran
Manager, Customs
F.W. Myers & Co., Inc.
West Service Road at I-87
P.O Box 188
Champlain, New York 12919

RE: Country of Origin marking and Tariff Classification of Nakiuk Fur boots from Canada

Dear Mr. Corcoran:

This is in response to your letter, dated August 15, 1988, for a country of origin marking and tariff classification ruling for the "Nakiuk Fur Boot" under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for examination.

FACTS:

The submitted sample is a pair of brown Nakiuk Fur boots, style no. 4751. The fur on the boots is made from Normandie cow-hide and is imported from France into Canada. The rubber soles of the boots are also made in France and imported into Canada to be used in making the boots. The rubber soled bottoms of the boots are marked "Made in France."

The fur boots are 12 inches high and have cowhide uppers that have been tanned. The cowhide uppers still have the cow hair/fur intact and cover most of the exterior surface of the upper. There are also 8 leather/metal eyelet stays riveted along the sides of the boots and on the boot shafts. A string lace will pass through the rivets and will be tied at the shin. Each boot has a removable foam padded textile bootie liner, a plastic foam insole, a paperboard heel counter and a stitched-on, 2-1/2 inch high, molded rubber cup-sole bottom.

ISSUES:

1. Does the merchandise at issue meet the country of origin marking requirements?

2. What material constitutes the external surface of the Nakiuk Fur boots for tariff classification purposes under the HTSUS?

LAW AND ANALYSIS:

Issue 1- Country of Origin marking

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that, unless excepted, every article of foreign origin, or its container, must be legibly, permanently, and conspicuously marked to indicate the country of origin to an ultimate purchaser in the United States. The primary purpose of the country of origin marking statute is to "mark goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." National Juice Products Association v. United States, 10 CIT 48, 628 F. Supp. 978 (1986), and United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Country of origin is defined in section 134.1(b) as the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of this part.

For a substantial transformation to be found, an article having a new name, character, or use must emerge from the processing. United States v. Gibson-Thomsen Co., Inc. 27 CCPA 267 (1940). In the instant case, the fur and unattached rubber soles are imported from France into Canada. It is in Canada that the fur is cut, sewn to the rubber sole, died and brushed. As a result of this manufacturing process, the fur and the rubber sole are substantially transformed into the Nakiuk Fur boots. Therefore, Canada is the country of origin of the instant merchandise.

To meet the requirements of 19 U.S.C. 1304, each boot of the pair must be marked legibly, conspicuously and permanently to indicate that Canada is the country of origin. In the instant case, the bottom of the soles are marked "Made in France". This marking should be changed to indicate that the boots are a product of Canada, not France.

Issue 2 -HTSUS Classification

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUS. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Within the limits of Chapter 64, it is the constituent material of the outer sole and the upper that determines tariff classification under headings 6401 to 6405, HTSUS. The issue in this case is whether the boots have uppers of leather or of furskin. Note 4(a) to Chapter 64 provides:

(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements, such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.

In determining whether the boots are made of furskin or leather, we look to Chapter 43, which provides for furskins and artificial fur; manufactures thereof. Note 1 to Chapter 43 states the following:

Throughout the tariff schedule references to "furskins", other than to raw furskins of heading 4301, apply to hides or skins of all animals which have been tanned or dressed with the hair on.

The Explanatory Notes to Chapter 43, which constitute the official interpretation of the HTSUS at the international level, provide further guidance in determining whether the cow hair on the Nakiuk Fur boots are considered to be furskin. The Explanatory Notes to heading 4302, which provide for tanned or dressed furskins, state in pertinent part:

It is to be noted that skins with the hair on, of the kinds excluded from heading 43.01 (such as pony skins, calfskins, and sheepskins), fall in this heading if tanned or dressed.

Since the Nakiuk Fur boots are made of tanned hair-on cow skin, they are considered to be made of furskin rather than leather. Thus, furskin is the material which constitutes the greatest external surface area of the boots.

HOLDING:

The Nakiuk Fur boots are properly classifiable under subheading 6405.90.9000, which provides for footwear in which the upper's external surface is predominately other than leather, composition leather, textile materials or rubber and/or plastics. The applicable rate of duty is 12.5% ad valorem. Articles
originating in Canada and classified in this subheading are eligible for a duty rate of 10% ad valorem under the United States-Canada Free Trade Act, if all applicable requirements are met.

Sincerely,

John Durant, Director

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