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HQ 084361


June 21, 1989

CLA-2 CO:R:C:G 084361 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6401.92.9000; 6401.99.3000

Mr. Charles Di Prinzio
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 1219-9703

RE: Tariff classification of rubber boot bottoms manufactured in Canada.

Dear Mr. Di Prinzio:

Your letter dated March 29, 1989, addressed to our Champlain office concerning the tariff classification of rubber boot bottoms, has been referred to this office for a direct reply to you. Samples were submitted for examination.

FACTS:

The merchandise to be imported consists of three different rubber/plastic molded boot bottoms. These bottoms will be assembled in the United States to four (and presumably more) different types of uppers.

The bottoms labelled 7700 and 7800 are over-the ankle and have lower portions which vaguely resemble the lower portions of the original moon boot bottoms. Bottom 7700 is about 3-3/4 inches high. Bottom 7800 is about 7-1/4 inches high.

Bottom 6700/6300 is not of the over-the-ankle type. It resembles the "Rubber Ducky" bottom. Bottom 6700 will have a PU upper stitched to it in the United States which makes it about 6-1/2 inches high. Bottom 6300 will have a leather and textile upper which will overlay the bottom but not increase its height.

You maintain that these bottoms are parts of footwear for tariff purposes.

ISSUE:

Whether the bottoms in their condition as imported 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 heading 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 any additions 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 much like rubber galoshes and, although not complete, provide a total covering for the foot.

It is to be noted that the bottoms labelled 6700 and 6300 are the same and as imported do not have a closure. Accordingly, these bottoms are classifiable under subheading 6401.99.3000, HTSUSA, as waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole not assembled by stitching, riveting, nailing, screwing, plugging or similar processes, other footwear, other, designed for use without closures.

The bottoms labelled 7700 and 7800 are classifiable under subheading 6401.92.9000, 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, covering the ankle but not covering the knee, other

HOLDING:

The bottoms labelled 7700 and 7800 are classifiable under subheading 6401.92.9000, HTSUSA, with duty at the general rate of 37.5 percent ad valorem.

Bottom 6700/6300 is classifiable under subheading 6401.99.3000, HTSUSA, with duty at the general rate of 25 percent ad valorem.

Merchandise which qualifies as "goods originating in the territory of Canada" as that term is defined in General Note 3(c) (vii) (B), HTSUSA, is eligible for reduced rates of duty upon importation into the United States. Consequently, bottom 6700/6300 may be eligible for a 22.5 percent ad valorem rate of duty while bottoms 7700 and 7800 may be eligible for a 33.7 percent ad valorem rate of duty.

Sincerely,

John Durant, Director

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