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.

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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