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HQ 088180


January 22, 1991

CLA-2 CO:R:C:G 088180 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.9040

Ms. Patricia J. Kittel
Assistant Import Manager
C.O. Lynch Enterprises, Inc.
4000 Stinson Avenue
Minneapolis, MN 55413

RE: Lining, boot, child's

Dear Ms. Kittel:

In a letter dated October 4, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a child's boot liner, Stock # 91-66L, manufactured in China.

FACTS:

The sample submitted may be described as an assembled boot lining plus a stitched-on cardboard ("Supertex") insole.

ISSUE:

Does the presence of the cardboard insole preclude classification of the article as uppers and parts thereof in subheading 6406.10, HTSUSA?

Is this article considered a formed upper for tariff purposes?

What material imparts the essential character to the lining?

LAW AND ANALYSIS:

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 tariff and any relative section or chapter notes.

It is our opinion that although the cardboard is an important addition to the lining, it does not exclude this article from being classified as uppers and parts thereof in subheading 6406.10, HTSUSA, because Additional Note 4 to Chapter 64 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. . . . ."

This lining is not a "formed upper" within subheadings 6406.10.05 through 6406.10.50, HTSUSA, because it is not an upper, only a part of an upper i.e., its lining.

Legal Note (LN) 3, to Chapter 64 provides that "[f]or the purposes of this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials."

LN 4(a) to Chapter 64 reads as follows:

4. Subject to note 3 to this chapter:

(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;

It is our view that LN's 3 or 4(a) to Chapter 64 do not apply here because none, or almost none, of the material of this item will be "external" in the finished item. Consequently, it is both impossible and inappropriate to apply those notes.

In this instance GRI 3 is applicable. Its relevant portions read as follows:

When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable 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 description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Explanatory Notes (EN), are the official interpretation of the Harmonized System at the international level. The EN for GRI 3(b) reads in pertinent part as follows:

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

The lining consists of two materials, namely, cardboard and textile materials. The pieces of textile pile and polyfoam are clearly cut from a laminated sheet of this combined material. A sheet of this laminated material would clearly be classified in Section XI as a laminated fabric following EN (F) to chapter 64 which states that "[s]ubject to the provisions of (E) above, for the purposes of the Chapter the expression 'textile materials' covers the fibers, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60." Therefore, we consider the whole laminated material to be a "textile material." The "Supertex" cardboard is "other."

Inasmuch as the lining is composed of textile and cardboard, classification must be based on the material that imparts the essential character to the merchandise. In this case it is clear to us that the lining's essential character is imparted by the textile material. This textile material is several times larger in surface than the cardboard: it provides both warmth and comfort to the wearer, and the pile fabric is the only material that will be visible in the finished shoe. Inasmuch as the fabric is entirely of man-made fibers, the appropriate classification is under subheading 6406.10.9040, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton, of man-made fibers, with duty at the rate of 9 percent ad valorem. The applicable textile category is 669.

Subheading 6406.10.85, HTSUSA, provides for parts of footwear, uppers and parts thereof, other than stiffeners, other, uppers of which less than 50 percent of the external surface area (including any leather, rubber or plastics accessories or reinforcements such as mentioned in note 4(a) to this chapter) is textile materials. We interpret this provision as applying only to uppers or parts of uppers which will appear on the outside of the finished shoe because, only in that case, will it be possible and appropriate to apply the stated "external surface" test. For this reason subheading 6406.10.85, HTSUSA, is not the correct classification for the instant lining.

You propose classification of the lining under subheading 6402.01.40753. This classification is incorrect because there in no such HTSUSA number.

HOLDING:

The lining is classifiable under 6406.10.9040, HTSUSA.

Sincerely,

John Durant, Director

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