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HQ 953600


March 29, 1993

CLA-2 CO:R:C:M 953600 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.9040

Ms. Catherine D. Delany
Columbia Shipping, Inc.
201 Hangar Road
Avoca, Pa 18641

RE: Upper, plastic boot, partial; Footwear, parts; HRL 085178

Dear Ms. Delany:

In a letter dated February 4, 1993, on behalf of Columbia Footwear Corporation of Hazelton, Pa, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a footwear upper which will be produced in Taiwan and/or China. A sample was submitted for examination.

FACTS:

The merchandise involved is the shaft portion of a child's cold weather plastic boot upper which has a textile fleece liner and a separately sewn-on textile insole bottom permanently stitched into it. The entire article is about 7-1/2 inches in height with the plastic faced shaft portion present as an extra layer for about the top 5 inches of it. There is a 2 inch wide plastic "Velcro" strap closure sewn onto the back of the plastic shaft, and the textile fleece liner extends about 1/2 inch above the top of the shaft, forming a topline trim.

ISSUE:

Does the article qualify as a "composite good" within the purview of GRI 3(b), HTSUSA?

Is this article classifiable under subheading 6406.10.60, HTSUSA, as part of an unformed upper of rubber or plastics or is it classifiable under subheading 6406.10.9040, HTSUSA, as part of an unformed upper of textile materials (assumed to be of man- made fibers)?

LAW AND ANALYSIS:

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.

We do not consider the sample to be a "formed upper" because the "forming" caused by the stitchout to the relatively flexible textile insole is not very fixed, and because only about half of the "upper" as it will be in the finished boot, is present.

GRI 2(b), HTSUSA, provides in part that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3."

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 or precise description of the goods.

(b) 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUSA, although not dispositive, should be looked to for the proper interpretation of the HTSUSA. See, 54 FR 35128 (August 23, 1989). EN (IX) to GRI 3(b), at page 4, reads as follows:

(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In Headquarters Ruling Letter (HRL) 085178 dated October 20, 1989, Customs held that when separate components including a partial plastic boot shaft upper and a removable textile boot liner were imported together, they did not qualify as "composite goods" because it is doubtful that the shaft and liner "form a whole which would not normally be offered for sale in separate parts." Liners for boots are often imported separately by makers and some types are sold separately to consumers as replacements for liners that have worn out. In this case the liner and boot shaft were separately classified under their appropriate HTSUSA subheadings.

With respect to the instant sample, a plastic boot upper shaft and a complete textile liner are permanently stitched together to form a unit. Further, the liner is not of a type that is normally sold separately to consumers as a replacement liner. Consequently, it is our opinion that the article is a "composite good' within the purview of GRI 3(b), HTSUSA.

The textile portion and the plastic portion of the footwear upper part are prima facie classifiable under separate subheadings of the tariff schedule which describe only a portion of the materials in the article as a whole. Following GRI 3(a), HTSUSA, subheadings 6406.10.60, HTSUSA, and 6406.10.9040, HTSUSA, are regarded as equally specific which requires application of GRI 3(b), HTSUSA, supra, governing the classification of composite goods.

Composite goods are classifiable as if they consisted of the component which gives them their essential character. EN VIII to GRI 3(b), at page 4, reads as follows:

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

It is our opinion that the textile liner imparts the essential character to the article. Our rational for this opinion is that the textile liner provides both comfort and, due to the fleece, substantial warmth, which is essential in a child's winter boot. Also, the textile liner predominates in terms of "bulk, quantity, weight or value."

You have also asked as to what the classification would be if the "sole" portion of the liner were omitted from the sample. In that case, we would not consider the textile liner as giving the article its essential character. Application of the essential character test in this situation results in the conclusion that neither the textile portion nor the plastic portion of the article gives it its essential character. Consequently, classification under subheading 6406.10.9040, HTSUSA, is appropriate following GRI 3(c), HTSUSA, which provides that "[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

HOLDING:

The partial boot upper with a permanently stitched-in textile liner (with or without a stitched-on textile bottom) is classifiable under subheading 6406.10.9040, HTSUSA, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of textile materials other than cotton, of man-made fibers. The applicable rate of duty for this provision is 9% ad valorem. The applicable textile category is 669.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota category 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 you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels, an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

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

Sincerely,

John Durant, Director
Commercial Rulings Division


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