CLA-2 CO:R:C:G 088180 DFC
Ms. Patricia J. Kittel
Assistant Import Manager
C.O. Lynch Enterprises, Inc.
4000 Stinson Avenue
Minneapolis, MN 55413
RE: Lining, boot, child's
Dear Ms. Kittel:
In a letter dated October 4, 1990, you inquired as
to the tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of a
child's boot liner, Stock # 91-66L, manufactured in China.
FACTS:
The sample submitted may be described as an assembled
boot lining plus a stitched-on cardboard ("Supertex") insole.
ISSUE:
Does the presence of the cardboard insole preclude
classification of the article as uppers and parts thereof
in subheading 6406.10, HTSUSA?
Is this article considered a formed upper for tariff
purposes?
What material imparts the essential character to the
lining?
LAW AND ANALYSIS:
In applying the HTSUSA, the Customs Service must follow
the terms of the statute. Classification of goods under the
-2-
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 tariff and any relative
section or chapter notes.
It is our opinion that although the cardboard is an
important addition to the lining, it does not exclude this
article from being classified as uppers and parts thereof
in subheading 6406.10, HTSUSA, because Additional Note 4
to Chapter 64 provides in pertinent part that "[f]ootwear
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. . . . ."
This lining is not a "formed upper" within subheadings
6406.10.05 through 6406.10.50, HTSUSA, because it is not an
upper, only a part of an upper i.e., its lining.
Legal Note (LN) 3, to Chapter 64 provides that "[f]or
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."
LN 4(a) to Chapter 64 reads as follows:
4. Subject to note 3 to this chapter:
(a) The material of the upper shall be taken
to be the constituent material having the
greatest external surface area, no account
being taken of accessories or reinforcements
such as ankle patches, edging, ornamentation,
buckles, tabs, eyelet stays or similar attachments;
It is our view that LN's 3 or 4(a) to Chapter 64
do not apply here because none, or almost none, of the
material of this item will be "external" in the finished
item. Consequently, it is both impossible and inappropriate
to apply those notes.
-3-
In this instance GRI 3 is applicable. Its relevant
portions read as follows:
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.
The Explanatory Notes (EN), are the official
interpretation of the Harmonized System at the international
level. The EN for GRI 3(b) reads in pertinent part as follows:
(VIII) The factor which determines essential
character will vary 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.
The lining consists of two materials, namely, cardboard
and textile materials. The pieces of textile pile and polyfoam
are clearly cut from a laminated sheet of this combined
material. A sheet of this laminated material would clearly
be classified in Section XI as a laminated fabric following EN
(F) to chapter 64 which states that "[s]ubject to the
provisions of (E) above, for the purposes of the Chapter the
expression 'textile materials' covers the fibers, yarns,
fabrics, felts, nonwovens, twine, cordage, ropes, cables, etc.,
of Chapters 50 to 60." Therefore, we consider the whole
laminated material to be a "textile material." The "Supertex"
cardboard is "other."
-4-
Inasmuch as the lining is composed of textile and
cardboard, classification must be based on the material that
imparts the essential character to the merchandise. In this
case it is clear to us that the lining's essential character
is imparted by the textile material. This textile material is
several times larger in surface than the cardboard: it provides
both warmth and comfort to the wearer, and the pile fabric is
the only material that will be visible in the finished shoe.
Inasmuch as the fabric is entirely of man-made fibers, the
appropriate classification is under subheading 6406.10.9040,
HTSUSA, as parts of footwear, uppers and parts thereof, other
than stiffeners, other, other, of textile materials other than
cotton, of man-made fibers, with duty at the rate of 9
percent ad valorem. The applicable textile category is 669.
Subheading 6406.10.85, HTSUSA, provides for parts of
footwear, uppers and parts thereof, other than stiffeners,
other, uppers of which less than 50 percent of the external
surface area (including any leather, rubber or plastics
accessories or reinforcements such as mentioned in note 4(a)
to this chapter) is textile materials. We interpret this
provision as applying only to uppers or parts of uppers which
will appear on the outside of the finished shoe because, only
in that case, will it be possible and appropriate to apply the
stated "external surface" test. For this reason subheading
6406.10.85, HTSUSA, is not the correct classification for the
instant lining.
You propose classification of the lining under subheading
6402.01.40753. This classification is incorrect because there
in no such HTSUSA number.
HOLDING:
The lining is classifiable under 6406.10.9040, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc NY Seaport
1cc James Sheridan NY Seaport
1cc DD Minneapolis
1cc Legal Reference
cahill library/peh
088180