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HQ 088652


May 3, 1991

CLA-2 CO:R:C:M 088652 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.1540

Mr. Paul Caterina
Traffic Manager
Bally Incorporated
Executive Offices
One Bally Place
New Rochelle, New York 10801

RE: Parts of footwear. Insole

Dear Mr. Caterina:

In a letter dated November 15, 1990, you inquired as to the tariff classification of an insole produced in Korea. A sample was submitted for examination.

FACTS:

The sample identified as an "inlay sole" is a removable insole which is constructed of a plastic bottom and midsection and a man-made textile top cover. The bottom of the sole is impressed or embossed with a pattern and the textile top layer is embossed with a repetition of the word "Bally." You state that the insole is constructed by taking a sheet of white polyurethane, a sheet of blue polyethylene, and a sheet of nylex textile and placing the three sheets into a "four section gang mold" which is then heated and pressed to form four insole shapes which are then cut out, after cooling, using a "cookie cutter-like die." It should be noted that we have assumed that the word "coding," used in your company's letter of December 12, 1990, describing the manufacturing process for this product, is a typographical error for the word "cooling."

ISSUE:

Whether the insole is "of textile materials" or "of rubber or plastics."

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 any relative section or chapter notes.

The Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. EN (F) to Chapter 64, HTSUSA, provides that "[s]ubject to the provisions of (E) above, for the purpose of this Chapter the expression "textile materials' covers the fibers, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables etc., of Chapters 50 to 60." Each insole here will be die cut from a relatively small sheet of fabric laminated to two layers of plastic. Each of the three "sheets" is about one foot by two feet in dimension. The laminated three layer sheet will have four "bumps" in it. These "bumps" are the shapes of the insoles. The insoles are apparently shaped simultaneously with the lamination of the three layers together in the "four section gang mold," which must look something like a multiple waffle maker. If, after cooling, but before cutting, this "bumpy" sheet were sent to the United States, we would not consider it be a footwear part in Chapter 64. Unlike the examples of footwear parts given in the EN's to Heading 64.06, in particular EN (1) (A) (1) ("Parts of uppers (e.g., vamps, toecaps, quarters, legs, linings and clog straps), including pieces of leather for making footwear cut to the approximate shape of uppers."), they would not have been "cut to the approximate shape (Underlining added) of their final form. A sheet of about one foot by two feet with four "bumps" in it is very different from the shape as used. There is no question that the "bumpy sheet" is "dedicated" to use as insoles, but "dedication" is clearly not sufficient to justify classification in Chapter 64.

Many tanned leather hides are of commercial use only in footwear, but, pursuant to EN (1) (A) (1) to Heading 64.06, they would be classified in Chapter 64, HTSUSA, only after being cut into specific footwear pieces. Even many parts which will be used in footwear "as is," i.e., without being cut or otherwise modified, and which can only be used in footwear are, nonetheless, excluded from Chapter 64. Two clear examples are the "boot protectors" and the "boot hooks" excluded by note 2 to Chapter 64.

It is our opinion that once excluded from Chapter 64, the "bumpy sheet" would be classified in Chapters 50-60 as a laminated fabric or an "article" of same. The textile layer is present for more than "mere reinforcement" in terms of function since it clearly adds significantly to the wearer's comfort and meets the description set out in EN 40.08 (A) for "[f]igured, printed or more elaborately worked textiles and special products. . . ."

In view of the foregoing, it is our position that the insole is "of textile materials" rather than "of rubber or plastics."

HOLDING:

Assuming that "nylex' is a man-made fiber, it is our position that the sample insole is classifiable under subheading 6406.99.1540, HTSUSA, as parts of footwear, removable insoles, other, of other materials, of textile materials, of man-made fibers, other, with duty at the rate of 17 percent ad valorem. The applicable textile category is 659.

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

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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