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HQ 083931


June 2, 1989

CLA-2 CO:R:C:G 083931 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6401.99.6000

Mr. Michael F. Watson
The A.W. Fenton Company Inc.
P.O. Box 19937
Columbus, Ohio 43219-0937

RE: Tariff classification of a rubber boot bottom produced in Korea

Dear Mr. Watson:

Your letter dated March 2, 1989, addressed to the District Director of Customs at Cleveland concerning the tariff classification and marking requirements applicable to rubber boot bottoms, has been referred to this office for a direct reply to you. A sample boot bottom has been submitted for examination.

FACTS:

The sample rubber boot bottom has a cotton lining. After importation leather uppers will be sewn and glued to bottoms represented by the sample.

ISSUE:

Do the boot bottoms exhibit the essential character of footwear?

LAW AND ANALYSIS:

In applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words classification is governed first by the terms of the headings of the tariff and relative section or chapter notes.

General Interpretative Rule 10(h), Tariff Schedules of the United States provides as follows:
unless the context requires otherwise, a tariff description for an article covers such article whether assembled or unassembled, and whether finished or unfinished

GRI 2(a), HTSUSA, provides as follows:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule) entered unassembled or disassembled.

Both Rule 10(h) and GRI 2(a) are prospective in nature. That is in order to classify an unfinished article one must know what the article will be in its contemplated finished condition. In this situation a prospective application of GRI 2(a) to the instant bottoms is modified by the language of Chapter 64, HTSUSA, and the Explanatory Notes thereto.

For example, heading 6405, HTSUSA, provides for other footwear. The Explanatory Note for this heading reads in pertinent part as follows:

Subject to Notes 1 and 4 to this Chapter, this heading covers all footwear having outer soles and uppers of a material or combination of materials not referred to in the preceding heading of this Chapter.

This heading excludes assemblies of parts (e.g., uppers whether or not affixed to an inner sole) not yet constituting nor having the essential character of footwear as described in headings 64.01 to 64.05 (heading 64.06).

Also, heading 6406, HTSUSA, provides for parts of footwear; etc. Explanatory Note (A) (7) to this heading reads as follows:

This heading covers:

(A) The various component parts of footwear; these parts may be of any material except asbestos.

(7) Assemblies of parts (e.g., uppers whether or not affixed to an inner sole) not yet constituting nor having the essential character of footwear as described in headings 64.01 to 64.05.

Prior to the advent of the HTSUSA, it was our position that uppers with closed bottoms and having no outer soles were unfinished footwear for tariff purposes. See Uniroyal v. United States, 3 CIT 220 (1982). Under the HTSUSA the same articles are considered to be parts of footwear because they do not have the essential character of footwear i.e., having both soles and uppers provided for in headings 6401 through 6405, HTSUSA. We interpret this treatment of uppers affixed to inner soles as effectively eliminating for the purposes of Chapter 64 consideration of articles such as the bottoms in issue in their contemplated finished condition. In other words, condition as imported will govern classification of the instant merchandise.

In view of the foregoing, we cannot take into account the addition of leather shafts to complete the bottoms. In this instance we have bottoms with substantial upper portions. These bottoms in their condition as imported have the essential character of footwear. Specifically, they look and function very much like rubber galoshes and, although not complete, provide a total covering for the foot. They would be in fact useful in their imported condition as waterproof footwear if one added some form of closure to keep them on the foot.

A separate ruling will be issued to you concerning the proper country of origin marking of the boot bottoms.

HOLDING:

The rubber boot bottoms are classifiable under subheading 6401.99.6000, HTSUSA, as waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing,
screwing, plugging or similar processes, other footwear, other, other. The applicable rate of duty for this provision is 37.5 percent ad valorem.

Sincerely,

John Durant, Director

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