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HQ 088771

April 30, 1991

CLA-2 CO:R:C:M 088771 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.15; 6406.99.30

Steven B. Lehat, Esq.
Sheldon & Mak
Attorneys
201 South Lake Avenue, Suite 800
Pasadena, California 91101

RE: Insoles

Dear Mr. Lehat:

In a letter dated January 15, 1991, written on behalf of SecondWind Co., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain insoles produced in Taiwan. Samples were submitted for examination.

FACTS:

The insoles involved are constructed either by joining (1) polyurethane with nylon or (2) polyurethane with a plastics product called "Textra."

The importer claims that these insoles are classifiable under subheading 6406.99.30, HTSUSA, as parts of footwear, removable insoles, heel cushions and similar articles, other, of other materials, of rubber or plastics.

ISSUE:

Whether the insoles are "of textile materials" or "of rubber or plastics."

LAW AND ANALYSIS:

The nylon/polyurethane insole was the subject of New York Ruling Letter (NYRL) 857390 dated November 19, 1990. In that
ruling Customs held that the insole was properly classifiable under subheading 6406.99.15, HTSUSA, as removable insoles, heel cushions and similar articles of textile materials. That ruling was predicated on an assumption that the insole "was cut from a sheet of laminated fabric and then shaped in a heat process." You now inform us that "the subject inner soles are not formed from pre-existing textile/plastic laminates. Here, the textile component of the inner soles is applied to a molded plastic insole. During the molding process the plastic is in liquid form. The nylon textile is glued thereon as the plastic solidifies. The plastic portion of the inner sole is identifiable as the article itself when joined to the textile. Therefore, [you claim] the subject inner soles are clearly not manufactured from pre-existing textile/plastic materials such that the nature of the merchandise is determined under HTS textile chapters."

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 any relative section or chapter notes.

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

The Explanatory Notes (EN), are the official interpretation of the Harmonized System at the international level. EN (E) to Chapter 64, HTSUSA, states that "[i]t should be noted that for 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, which means that the coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour.

EN (F) to Chapter 64, HTSUSA, states that "[s]ubject to the provisions of (E) above, for the purposes of this Chapter the expression 'textile materials' covers the fibers, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60."

Following the LN and the EN's to Chapter 64, HTSUSA, you maintain that the insoles should be considered to be "of rubber or plastics" for tariff purposes. Further, you assert that the plastic component provides the inner soles with their essential component which compels the conclusion based on GRI 3 that the merchandise is "of rubber or plastics."

We do not agree with you that a different process will necessarily lead to a different classification. Your suggestion that LN 3 to Chapter 64 is applicable to the nylon/polyurethane insole is incorrect. It is our position that "external" coatings are ones seen in the finished shoe, not the other side (the "inside"). The plastic layer is completely hidden in the finished shoe. Only the textile layer can be seen.

GRI 3, HTSUSA, reads in pertinent part as follows:

3. 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.

We do not agree with you that GRI 3(b) applies in this instance. Specifically, per GRI 3(a), GRI 3(b) applies "when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods." "Textile materials", using the notes to the Chapters and headings (in
accordance with GRI 1), applies, in general, to laminated fabrics, that is, to the combination of textile fibers and plastics when laminated together. Since "textile materials" applies to all the material of the insole, application of GRI 3(b) appears inappropriate. We take the position that the intent of EN (F) is to apply the products of Chapters 50 to 60 to Chapter 64 and thus, presumably, also its principles.

In view of the foregoing, it is our opinion that the polyurethane/nylon insole is classifiable under subheading 6406.99.15, HTSUSA.

The second sample is a rectangular piece of "Textra." We note that the inquiry relates to the classification of an insole, but no sample of the finished insole has been submitted. However, assuming the blue "nubbed" plastic surface will be the exposed (external) surface of the insole, LN 3 to Chapter 64 would apply. Consequently, the polyurethane/Textra insole is classifiable under subheading 6406.99.30, HTSUSA. As parts of footwear, removable insoles, heel cushions and similar articles, other, of other materials, of rubber or plastics.

HOLDING:

The polyurethane/nylon insole is classifiable under subheading 6406.99.15, HTSUSA, with duty at the rate of 17 percent ad valorem. The applicable textile category is 659.

The polyurethane/Textra insole is classifiable under subheading 6406.99.30, HTSUSA, with duty at the rate of 5.3 percent ad valorem.

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

Previous Ruling Next Ruling

See also:

• Tariff No.: 6406.99.15 - Parts of footwear; removable insoles, heel cushions, etc; gaiters, leggings, etc, & pts. thereof; all the foregoing of textile materials
• Tariff No.: 6406.99.30 - Parts of footwear, nesoi; removable insoles,heel cushions, etc; gaiters, leggings, etc, & pts. thereof; all the foregoing of rub./plast.