CLA-2 CO:R:C:G 083643 DC
S. Steven Karalekas, Esq.
Karalekas & McCahill
Attorneys At Law
1250 Connecticut Ave. N.W.
Washington, D.C. 20036
RE: Tariff classification of unfinished boot bottoms
Dear Mr. Karalekas:
Your letter dated May 3, 1988, addressed to our New York
office concerning the tariff classification of unfinished boot
bottoms, has been referred to this office for a direct reply to
you. A sample was submitted for examination.
FACTS:
The sample, produced in Scotland, may be described as a
rubber bottom commonly known as "duck type" footwear. It is a
low cut (below-the-ankle) shell consisting of three parts: sole
and heel, low-cut upper part, and sponge insole.
After importation the bottoms are attached to uppers of
leather that have been manufactured in the United States. These
leather uppers are said to be made of fine-grain cowhide,
specially tanned and tumbled to bring out the grain and give the
material a soft and supple feel.
You inform us that all of the imported bottoms will be
stamped with the model name above the heel. Consequently, you
maintain that it is clear whether a particular bottom will be
attached to an above-the-ankle leather upper or a leather upper
that will be no more than a fringe or collar, extending around or
just below the ankle.
You suggest that these bottoms are properly classifiable
under subheading 6406.99.3030, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), as parts of footwear, other,
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other, of rubber or plastics, bottoms, and dutiable at the rate
of 5.3 percent ad valorem.
ISSUE:
Do the boot bottoms exhibit the essential character of
footwear?
LAW AND ANALYSIS:
Your position that the instant bottoms are parts of footwear
is based on the following three factors:
1. The HTSUSA contains a specific category for parts of
footwear which did not exist under the Tariff
Schedules of the United States (TSUS);
2. Application of the tests set forth in Daisy-Heddon, Div.
of Victor Comptometer Corp. v. United States, 66 CCPA
97, C.A.D. 1228 (1979), supports classification as
parts of footwear; and
3. Headquarters Ruling Letter (HRL) 078910 dated
November 3, 1987, holding virtually identical
merchandise to be parts of footwear for purposes of
classification under the TSUS.
In addition to your claim that the inclusion in the HTSUSA
of a provision for "parts of footwear" broadens the definition of
"parts of footwear,"
you maintain that the statistical description "Bottoms"
under subheading 6406.99.30, HTSUSA, is a de facto recognition
that bottoms exist as a specific footwear part and should be
classified under the residual category for parts of footwear,
other, of rubber or plastics. The statistical breakout reveals
nothing about the intention of the HS drafters in Brussels with
respect to the definition of "parts of footwear" versus
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"footwear", which is a basic international distinction at the
four digit level. Rather, the statistical breakout for "Bottoms"
originated with a conversation in 1987 between officials at
Customs and the International Trade Commission as a means of
recognizing items like the outer sole, midsole, and wedge
combinations imported for use in the production of jogging shoes.
In making a jogging shoe, the addition of those pieces to the
lasted upper is called the "bottoming." The statistical breakout
did not contemplate the use of "bottoms" in a context that could
be confused with the trade term "boot bottoms", i.e., the foot
portion of a boot or put in other words, as boot with its shaft
removed.
General Interpretative Rule 10(h), TSUS, provides as
follows:
Unless the context requires otherwise, a tariff description
for an article covers such article whether assembled or
unassembled, and whether finished or unfinished.
General Rule of Interpretation GRI 2(a), HTSUSA, provides as
follows:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as presented, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of this
rule) entered unassembled or disassembled.
Both Rule 10(h) and GRI 2(a) are prospective in nature.
That is in order to classify an unfinished article one must know
what the article will be in its contemplated finished condition.
In this situation a prospective application of GRI 2(a) to the
instant bottoms is modified by the language of Chapter 64,
HTSUSA, and the Explanatory Notes thereto.
For example, heading 6405, HTSUSA, provides for other
footwear. The Explanatory Note for this heading reads in
pertinent part as follows:
Subject to Notes 1 and 4 to this Chapter, this heading
covers all footwear having outer soles and uppers of a
material or combination of materials not referred to in the
preceding heading of this Chapter.
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* * * *
This heading excludes assemblies of parts (e.g., uppers
whether or not affixed to an inner sole) not yet
constituting nor having the essential character of footwear
as described in headings 64.01 to 64.05 (heading 64.06).
Also, heading 6406, HTSUSA, provides for parts of footwear;
etc. Explanatory Note (A)(7) to this heading reads as follows:
This heading covers:
(A) The various component parts of footwear; these parts
may be of any material except asbestos.
Parts of footwear may vary in shape according to the
types or styles of footwear for which they are intended. They
include:
* * * *
(7) Assemblies of parts (e.g., uppers whether or not affixed
to an inner sole) not yet constituting nor having the
essential character of footwear as described in headings
64.01 to 64.05.
Prior to the advent of the HTSUSA, it was our position that
uppers with closed bottoms and having no outer soles were
unfinished footwear for tariff purposes. See Uniroyal v. United
States, 3 CIT 220 (1982). Under the HTSUSA the same articles are
considered to be parts of footwear because they do not have the
essential character of footwear i.e., having both soles and
uppers provided for in headings 6401 through 6405, HTSUSA. We
interpret this treatment of uppers affixed to inner soles as
effectively eliminating for the purposes of Chapter 64 consi-
deration of articles such as the bottoms in issue in their
contemplated finished condition. In other words condition as
imported will govern classification of the instant merchandise.
In view of the foregoing, we cannot take into account the
addition of leather shafts to complete the bottoms. In this
instance we have bottoms with substantial upper portions. These
bottoms in their condition as imported have the essential
character of footwear. Specifically, they look and function very
much like rubber galoshes and, although not complete, provide a
total covering for the foot. They would be in fact useful in
their imported condition as waterproof footwear if one added some
form of closure to keep them on the foot.
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We note that the legend "MADE IN U.S.A." appears on the sole
of the sample bottom. This is not an acceptable country of origin
marking because the boot bottom was not produced in the United
States.
HOLDING:
The rubber boot bottoms are classifiable under subheading
6401.99.6000, HTSUSA, as waterproof footwear with outer soles and
uppers of rubber or plastics, the uppers of which are neither
fixed to the sole nor assembled by stitching, riveting, nailing,
screwing, plugging or similar processes, other footwear, other,
other. The applicable rate of duty for this provision is 37.5
percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
DFCahill:tj:typed 05/18/89
6cc A.D. NY Seaport
1cc James Sheridan NY Seaport
1cc John Durant 1cc Legal Reference
Cahill Library
name: 083643DC