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HQ 084287


July 21, 1989

CLA-2 CO:R:C:G 084287 DC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.8040

Mr. Anthony Y. Kim
Vice President
Top Line Manufacturing Co.
Passaic Industrial Center/Building 1F
Dayton Avenue
Passaic, NJ 07055

RE: Tariff classification of a tricot/foam/vinyl boot liner

Dear Mr. Kim:

Your letter dated March 23, 1989, addressed to our New York office concerning the tariff classification of a boot liner produced in Korea, has been forwarded to this office for a direct reply to you. A sample was submitted for examination.

FACTS:

The sample has a plastic bottom layer, a plastic heel guard extending 7 inches up the back of the liner, and there is a plastic piping creating a bordering around the top opening of the liner. Also, there is a thick layer of foam padding throughout the entire liner.

ISSUE:

Can the liner be considered footwear for tariff purposes?

Is the liner classifiable as part of an upper or as a part of footwear?

LAW AND ANALYSIS:

We do not consider the liner to be footwear for tariff purposes. The plastic bottom layer may indicate that the liner can be used outside the boot. However, the great majority of the external surface of the upper is of tricot and has "whipcord" binding thread around the seam between the edges of the "sole" and the "upper." In fact, all of the parts of the liner are put together with this binding. Such binding would be extremely vulnerable if used outside the boot.

Since the vinyl bottom will be in contact with the top of the sole of the boot rather than the ground, it is not an "outer sole" for tariff purposes. Explanatory Note (C) to Chapter 64, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) provides in pertinent part that "[t]he 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."

Inasmuch as the liner has a sole portion, it could be argued that the liner is "more than" part of an upper and thus classifiable under subheading 6406.99.1540, HTSUSA, as parts of footwear, other, of other materials, of textile materials, of man-made fibers, other or under subheading 6406.99.3060, HTSUSA, if of rubber or plastics. However, Additional U.S. Note 4 to Chapter 64, HTSUSA, provides in pertinent part that "[f]ootwear uppers whether or not affixed to inner soles or other sole components (but without outer soles) are to be classified as footwear uppers in subheading 6406.10." Thus, the presence of a sole portion does not preclude classification of the liner as part of an upper.

In applying the 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.

GRI 2(b), HTSUSA, provides in part that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.

We note that liners of man-made fibers are classifiable under subheading 6406.10.8040, HTSUSA, while liners of plastics are classifiable under subheading 6406.10.6000, HTSUSA. When goods are prima facie, classifiable under two or more headings or subheadings in the HTSUSA, classification must be determined based on the sequential application of the principles set out in GRI 3, HTSUSA, which reads as follows:

3. When, by application of Rule 2(b) or for any other reason, goods are, prima facie, classi- fiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or compo- nent which gives them their essential character, insofar as this criterion is appli- cable.

GRI 3(b), HTSUSA, is relevant here because GRI 3(a), HTSUSA, cannot be used in determining classification. The Explanatory Notes for GRI 3(b), HTSUSA, state in pertinent part as follows:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material, its bulk, quantity, weight, or value, or by the role of a constituent material in relation to the use of the goods.

It should be noted that the cellular plastic foamed material is covered on both sides with fabric. In this instance a determination must be made as to whether this combination is a textile or plastic in order to ascertain that material which imparts the essential character to the boot liner. The Explanatory Notes to Chapter 39, HTSUSA, relating to plastics and textile combinations are relevant to such a determination and read in pertinent part as follows:

. . . Otherwise, the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this Chapter:

. . .

(d) plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens where the textile is present merely for reinforcing purposes.

In view of the foregoing,, the plastic and textile combination is considered a textile for tariff purposes because the fabric is present for more than reinforcing purposes. Specifically, the fabric on the inside and bottom of the liner makes it easier to place the foot therein and avoids any sticking problems which the foamed plastic might cause. Also, the fabric on the outside of the boot serves to retain the shape of the liner and to protect the foamed material from damage.

It is our position that the textile portion of the liner, including the foamed plastic material, imparts the essential character to the liner. Our rationale for this position is that the textile portion which includes the foamed material provides insulation for the liner and keeps the feet warm which is the primary purpose of the liner. The role of the vinyl on the bottom and back of the liner is clearly subordinate to the textile portion.

HOLDING:

The boot liner is classifiable under subheading 6406.10.8040, HTSUSA, as parts of footwear, uppers and parts thereof, other, other, of textile materials other than cotton, of man-made fibers. The rate of duty for this provision is 9 percent ad valorem. The applicable textile category number is 669.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restrictions or requirements.

Sincerely,

John Durant, Director

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