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NY 862120

APRIL 29, 1991

CLA-2-64:S:N:N3:D-346 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.90.40

Mr. Gregg Schulze
Bright Star Products
21 Shafer Place
Hackensack, NJ 07601

RE: The tariff classification of a replacement boot liner from Korea.

Dear Mr. Schulze:

In your letter dated April, 3, 1991, you requested a tariff classification ruling.

The sample has a plastic bottom layer, a plastic heel guard extending 7 inches up the back of the liner, and there is a fabric piping creating a border around the top opening of the liner. Also, there is a thick layer of foam padding throughout the entire liner.

We do not consider the liner to be footwear for tariff purposes. The plastic bottom layer may indicate that the liner can be used outside the boot. However, the great majority of the external surface of the upper is of tricot and has "whipcord" binding thread around the seam between the edges of the "sole" and the "upper." Such binding would be extremely vulnerable if used outside the boot.

Since the vinyl bottom will be in contact with the top of the sole of the boot rather than the ground, it is not an "outer sole" for tariff purposes. Explanatory Note (C) to Chapter 64, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) provides in pertinent part that "the term `outer sole' as used in headings 64.01 to 64.05 means that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground."
In as much as the liner has a sole portion, it could be argued that the liner is "more than" part of an upper and thus classifiable under subheading 6406.99.1540, HTSUSA, as parts of footwear, other, of other materials, of textile materials, of man-made fibers, other or under subheading 6406.99.3060, HTSUSA, if of rubber or plastics. However, Additional U.S. Note 4 to Chapter 64, HTSUSA, provides in pertinent part that "footwear 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." Thus, the presence of a sole portion does not preclude classification of the liner as part of an upper.

The foamed plastic and textile combination is considered a textile for tariff purposes because the fabric is present for more than reinforcing purposes. Specifically, the fabric on the inside and bottom of the liner makes it easier to place the foot therein and avoids any sticking problems which the foamed plastic might cause. Also, the fabric on the outside of the boot serves to retain the shape of the liner and to protect the foamed material from damage.

The textile portion of the liner, including the foamed plastic material, imparts the essential character to the liner. Our rationale for this position is that the textile portion which includes the foamed material provides insulation for the liner and keeps the feet warm which is the primary purpose of the liner. The role of the vinyl on the bottom and back of the liner is clearly subordinate to the textile portion.

The applicable subheading for the sample will be 6406.10.90.40, Harmonized Tariff Schedule of the United States (HTS), which provides for parts of uppers, which are of textile materials composed predominately, by weight, of man-made fiber. The rate of duty will be 9 percent ad valorem.

Your sample falls within textile category designation 669. Based upon international textile trade agreements, products of Korea may be subject to visa/quota restrictions.

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.
This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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