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HQ 089598


July 16, 1991

CLA-2 CO:R:C:M 089598 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.30

Mr. Mark R. Kopp
Kinney Shoe Corp.
233 Broadway
New York, NY 10279-0099

RE: Classification of Footwear Insole

Dear Mr. Kopp:

This is in response to your letter of April 18, 1991, concerning the classification of footwear insoles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The insole consists of polyurethane, foam rubber and nylon tricot. A sheet of nylon material is glued to a sheet of foam rubber. This material is then cut to size. The polyurethane is blown into a mold which gives the insole its shape to the heel cushion, arch support, and traction grids on the bottom. The foam rubber and nylon layers are placed over the polyurethane in the mold. Through chemical reaction and pressure, the foam rubber and nylon layers are bonded to the polyurethane. The finished article is designed to replace worn insoles in athletic footwear.

ISSUE:

What is the classification of the subject insole under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The insole is classifiable as a composite good made up of different components as follows under GRI 3(b). GRI 3(b) provides that:

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 component which gives them their essential character, insofar as this criterion is applicable.

As described, the insole consists of different materials (polyurethane, foam rubber, nylon) and therefore meets the definition of a composite good under GRI 3(b).

Next to be determined is the essential character of the insole. In understanding the General Rules of Interpretation, the Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note (VIII) (p.4) to GRI 3(b) provides that:

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 or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Based on these criteria, the essential character of the insole is the polyurethane bottom. It is bulkier and heavier than the foam and nylon layer and the role of the polyurethane is important in relation to the use of the shoe. Since the article is a sport insole, the shock absorption and stabilization supplied by the bottom layer is the most important function of the insole.

We note that this type of insole is different from other rubber and plastic insoles with fabric top layers previously ruled upon as being textile materials. In this case, the polyurethane is molded into an individual piece, it is not cut from a "sheet" of polyurethane. Also, the foam and nylon layer is molded onto the polyurethane layer; the polyurethane layer is not laminated onto the foam and nylon layer.

HOLDING:

The insole is classifiable under subheading 6406.99.30, HTSUSA, which provides for Parts of footwear; removable insoles, heel cushions and similar articles: Other: Of other materials: Of rubber or plastics. The general, column one rate of duty is 5.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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