CLA-2 CO:R:C:M 088771 DFC
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
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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."
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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
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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
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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
Commercial Rulings Division
6cc AD NY Seaport
1cc James Sheridan NY Seaport
1cc Legal Reference
2cc CIE
cahill library/peh
088771wp