CLA-2 CO:R:C:M 956766 DFC
Ms. Ann Williams
A.N. Deringer, Inc.
173 W. Service Road
Champlain, New York 12919
RE: Uppers, plastic, unformed; Footwear, parts; Composite
goods; Essential character; HRL's 085178, 953600, 955499;
DD 897938 affirmed
Dear Ms. Williams;
This is in reference to your letter dated July 15, 1994, on
behalf of Rallye Footwear Inc., asking for reconsideration of DD
897938 issued to you on June 7, 1994, by the District Director
of Customs, Boston, Massachusetts, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), of a shoe upper produced in Canada. A
sample of the upper along a letter and literature from the
shipper further describing the merchandise were submitted on
January 5, 1995, for our examination. A letter from the shipper
dated February 10, 1995, was also considered in preparing this
ruling.
FACTS:
The sample, identified as style 4030 "Barbie" is an unformed
plastic shoe upper consisting of a sewn-in textile liner attached
to a 1 inch external collar eyelet stay and tongue. The bottom
is not closed. The tongue has the word "Barbie," and depicts the
"Barbie" doll character.
In DD 897938 dated June 7, 1994, the District Director of
Customs, Boston, Massachusetts, ruled that style 4030 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.
You maintain that style 4030 is classifiable under
subheading 6406.10.6000, HTSUSA, which provides for parts of
footwear, uppers and parts thereof, other than stiffeners, formed
uppers, other, of rubber or plastics.
ISSUES:
Does style 4030 qualify as a "composite good" within the
purview of GRI 3(b), HTSUSA?
Is style 4030 classifiable under subheading 6406.10.6000,
HTSUSA, as parts of unformed uppers of rubber or plastics or is
it classifiable under subheading 6406.10.9040, HTSUSA, as parts
of unformed uppers of textile materials other than cotton, 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]." In other words classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
Footwear is provided for in Chapter 64, HTSUS. Note 3 to
Chapter 64, HTSUS, provides as follows:
3. 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.
Note 4(a) to chapter 64, HTSUS, provides, 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[.]
Inasmuch as the lower portion [textile liner] of style 4030
will not be visible externally when the completed footwear is
worn, the external surface area test of note 4(a) to chapter 64,
HTSUSA, is not applicable.
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, provides, 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.
(c) When 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.
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 HTSUS.
See, T.D. 89-80, 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.
4
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
footwear 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, the textile liner
without a bottom and the collar, eyelet stay, and tongue are
permanently stitched together to form a unit. Further, the liner
without a bottom is not of a type that is normally sold
separately to consumers as a replacement liner. Therefore, it is
our opinion that the collar, eyelet stay and the textile lining
constitute a "composite good" within the purview of GRI 3(b),
HTSUSA.
The subject unformed upper is 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, supra, and
6406.10.9040, HTSUSA, supra, are regarded as equally specific
which requires application of GRI 3(b), HTSUSA, 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 your position that the essential character of style
4030 is imparted by plastic rather than textile. Specifically,
the plastic consists of a foam liner, which provides warmth and
comfort by acting as a cushion, as well as the PVC quarters and
uppers. In addition, you contend that the plastic exceeds the
textile in both surface area and value.
In HRL 953600, dated March 29, 1993, Customs held that the
textile liner imparted the essential character to a partial boot
upper with a permanently stitched-on textile bottom. The
rationale for that finding was that the textile liner provided
both comfort and warmth due to the fleece which is essential in a
5
child's winter boot. Further, the textile liner predominated in
terms of 'bulk, quantity, weight or value.'
It is our opinion that the essential character of style 4030
is likewise imparted by its textile portion. Our rationale for
this position is that the textile lining provides both comfort
and, due to the fleecy fabric, warmth which is essential in a
winter product. See HRL 955499 dated February 18, 1993.
In view of the foregoing, it is our opinion that style 4030
is a composite good 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.
HOLDING:
DD 897938 is affirmed.
Style 4030 "Barbie" is dutiable at the rate of 8.6% ad
valorem under subheading 6406.10.9040, HTSUSA. 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