CLA-2 CO:R:C:M 950279 DFC

Steven B. Lehat, Esq.
Sheldon & Mak
Attorneys
201 South Lake Avenue, Suite 800
Pasadena, California 91101

RE: Reconsideration of Headquarters Ruling Letter (HRL) 088771 dated April 30, 1991, and New York Ruling Letter (NYRL) 857390 dated November 19, 1990. Insole, polyurethane/nylon HRL 088771 and NYRL 857390 modified

Dear Mr. Lehat:

In a letter dated August 22, 1991, you asked that the result reached in HRL 088771 dated April 30, 1991, as to the tariff classification of plastic polyurethane/textile nylon insoles be reconsidered. Specifically, you were advised that this merchandise is classifiable under subheading 6406.99.15, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as parts of footwear, removable insoles, heel cushions and similar articles, other, of other materials, of textile materials, with duty at the rate of 17 percent ad valorem. The applicable textile category is 659.

FACTS:

The insoles involved are constructed by joining polyurethane with nylon.

You renew the claim that the insoles are properly 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:

Are the insoles "of textile materials" or "of rubber or plastics."?

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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 this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials."

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 (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."

In HRL 088771 Customs took the position that the insoles do not meet the requirements of LN 3 as being 'rubber or plastics' because the plastic layer is completely hidden in the finished shoe and only the textile layer can be seen. You assert that the rationale for this position is flawed. You argue that since the insoles are not merely shoe 'parts,' but shoe 'accessories' with a separate identity, there is no reason to assume that the tariff requires a plastic visibility beyond that which the consumer encounters when purchasing the product. Further, you state that the Customs position with respect to the applicability of LN 3 does not distinguish between 'parts' and 'fittings.' You assert that the EN expressly separates 'parts' from 'fittings,' i.e., removable insoles. Thus, you reason that similar treatment of 'parts' and 'fittings' under LN-3 does not necessarily follow. You urge that such independent removable fittings be viewed apart from how they appear in shoes in which case there would be no dispute about the visibility of the 'rubber or plastics.'

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We have reconsidered our position on this point and are now of the opinion that LN 3 to Chapter 64 is not relevant in determining the classification of the insoles. Our rationale for this change in position is that the term "externally" as used in LN 3 to Chapter 64 has reference to the outside of the shoe. Consequently, LN 3 is inapplicable here because the insoles are obviously inside the shoes.

As you have previously informed us the inner sole is not formed from pre-existing textile plastic laminates. In this instance, the textile component of the inner sole 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. Consequently, you assert that the inner sole is clearly not manufactured from pre-existing textile/plastic materials such that the nature of the merchandise is determined under the textile chapters.

In HRL 088771 we stated that "[w]e 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 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.

We have reconsidered our position in this matter and are now of the opinion that the insoles are not textile fabrics, impregnated, coated, covered or laminated with plastics within the purview of Chapter 59, HTSUSA. The insoles are composite articles the classification of which is governed by GRI 3(b) which reads as follows:

3(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.

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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 material, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.

It is our observation that the essential character of the insoles is imparted by the plastics. Our rationale for this conclusion is based on the following factors:

1. the shape of the insoles is due to their plastic contents;

2. the plastic cushions the foot thus providing shock absorbency and arch support;

3. the plastic component of the insoles far outweighs the nylon portion; and

4. although the nylon may provide a comfort factor it is not significant with respect to the identity of the product.

For the reasons stated above, the 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.

HOLDING:

The nylon/polyurethane insoles are dutiable at the rate of 5.3 percent ad valorem under subheading 6406.99.30, HTSUSA.

Both HRL 088771 and NYRL 857390 are modified to reflect the result reached here.

Sincerely,


John Durant, Director
Commercial Rulings Division

6 cc AD NY Seaport
1cc J Sheridan NY Seaport
1cc G. Barth NY Seaport
1cc John Durant
1cc Legal Reference