CLA-2 CO:R:C:M 952445 KCC
Mr. Bruce A. Bell
Tower Group International
W.N. Proctor Company, Inc.
P.O. Box 192
Boston, Massachusetts 02101
RE: Insoles and Blockers; GRI 2(a); unfinished or incomplete
articles; EN 64.06; essential character; EN Rule 3(b); of
textile material; of plastic; HRL 950279; GRI 3(b);
composite good; HRL 084253
Dear Mr. Bell:
This is in response to your letter dated July 7, 1992, to
Customs in New York, on behalf of Jones & Vining, Inc., regarding
the tariff classification of insoles and blockers under the
Harmonized Tariff Schedule of the United States (HTSUS).
Representative samples of the insoles and blockers were submitted
for examination.
FACTS:
The articles under consideration are insoles and blockers
which are composite goods consisting of three layers of material.
The bottom layer is made up of a polyester material. The inner
layer is a polyurethane foam which is designed to cushion the
foot. The thickness of the polyurethane foam may vary from 2 mm
to 7 mm and in terms of weight is the dominant component. The
top layer will be composed of one of three materials, cotton
canvas, leather, or brush nylon.
The insoles are manufactured as follows:
1) polyurethane foam sheet (inner layer) is pressed flat,
2) the top and bottom layers are cemented onto the
polyurethane foam sheet,
3) the cemented sheet is heat shaped with a mold, and
4) the insole is cut with a die to its required shape.
The blocker follows the same manufacturing process, except after
the molding process, the sheet is not cut to shape. The molding
process of the blocker determines the form and basic width, but
leaves the length of the blocker for the purchaser to determine.
Each uncut sheet consists of a pair of blockers. The insoles
cost approximately $1.06 per pair and a sheet of blockers (one
pair) cost approximately $0.50 - $1.00.
ISSUE:
What is the proper tariff classification of the insoles and
blockers under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, 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 [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.
You contend that the blockers are classified pursuant to
GRI 2(a), HTSUS, as unfinished or incomplete insoles in
subheading 6406.99, HTSUS, which provides for "Parts of footwear;
removable insoles, heel cushions and similar articles; gaiters,
leggings and similar articles, and parts thereof...Other...Of
other materials...."
However, Customs personnel contend that as imported the
blockers are excluded from classification under subheading
6406.99, HTSUS, pursuant to Explanatory Note (EN) 64.06 of the
Harmonized Commodity Description and Coding System (HCDCS). EN
64.06(I)(A)(1) states that:
(A) The various component parts of footwear;...
Parts of footwear may vary in shape according to the
types or styles of footwear for which they are intended.
They include:
1) Parts of uppers (e.g., vamps, toecaps, quarters,
legs, linings and clog straps), including pieces
of leather for making footwear cut to the
approximate shape of uppers...,
The Explanatory Notes, although not dispositive, are to be looked
to for the proper interpretation of the HTSUS. 54 Fed. Reg.
35127, 35128 (August 23, 1989).
Unlike the examples of footwear parts given in EN 64.06,
Customs personnel contend that the blockers have not been "cut to
the appropriate shape (emphasis added)" of their final form. We
do not find this argument compelling. The phrase "cut to
appropriate shape" in EN 64.06(I)(A)(1) is specifically in
reference to parts of uppers. Insoles are not considered to be
parts of uppers in the footwear industry.
It is clear that EN 64.06(I)(A)(1) does not refer to
insoles. Moreover, further along in EN 64.06(I)(A) and (B)
insoles are discussed as follows:
3) Inner, middle and outer soles, including half
soles or patins; also in-soles for glueing on the
surface of the inner soles....
(B) The following fittings (of any material except
asbestos) which may be worn inside the footwear:
removable in-soles, hose protectors (of rubber,
rubberised fabric, etc.) and removable interior heel
cushions.
The blockers are not excluded from subheading 6406.99, HTSUS,
merely because they are not cut to shape. Therefore, the next
issue to be decided is whether the blockers are classified as
unfinished or incomplete insoles pursuant to GRI 2(a), HTSUS.
GRI 2(a), HTSUS, states that:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article....
In general, essential character has been construed to mean
the attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, EN Rule 3(b) provides
further factors which help determine the essential character of
goods. Factors such as bulk, quantity, weight or value, or the
role of a constituent material in relation to the use of the
goods are to be utilized, though the importance of certain
factors will vary between different kinds of goods. HCDCS, Vol.
1. p. 4.
As imported, the blockers have been molded and shaped into
the basic form and width of footwear insoles. The only
determination left is the length of the insoles which will be
determined by the purchasers when they cut out the blockers from
the formed sheet. The blocker's form allows the purchaser to
readily vary the length of the insoles without spending the time
and cost necessary to actually shape the items. Therefore, the
blockers have the essential character of footwear insoles. The
blockers are properly classified under subheading 6406.99, HTSUS,
as unfinished or incomplete insoles pursuant to GRI 2(a), HTSUS.
Moreover, the insoles under consideration are also
classified under subheading 6406.99, HTSUS, as insoles. The
remaining issue for both the blockers and insoles is whether they
are constructed "of textile materials" or "of rubber or
plastics." You contend that the blockers and insoles are
classified as articles "of rubber or plastics" under subheading
6406.99.30, HTSUS, pursuant to Headquarters Ruling Letter (HRL)
950279 dated December 24, 1991. You state that from the
description given in HRL 950279, your product is identical to the
insole in HRL 950279 so that it would be physically impossible to
tell the two insoles apart. HRL 950279 classified insoles made
of polyurethane and nylon under subheading 6406.99.30, HTSUS. In
HRL 950279, the textile component of the inner sole was applied
to a molded plastic insole. During the molding process the
plastic was in liquid form. The nylon textile was glued thereon
as the plastic solidified.
HRL 950279 determined that the insoles were composite
articles the classification of which was governed by GRI 3(b),
HTSUS, which reads as follows:
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 criteria is applicable.
HRL 950279 determined that the essential character of the
insoles was imparted by the polyurethane plastic. This
conclusion was based on the following facts:
1) the shape of the insoles was due to their plastic contents,
2) the plastic cushioned the foot thus providing shock
absorbency and arch support,
3) the plastic component of the insole far outweighed the nylon
portion, and
4) although the nylon did provide a comfort factor it was not
significant with respect to the identity of the product.
We are of the opinion that the rationale discussed in HRL
950279 is applicable to the insoles and blockers under
consideration. In this case, the blockers and insoles are
composed of multilayer materials, polyester (textile material),
polyurethane foam (plastic), and either cotton canvas, brush
nylon (textile materials) or leather. The polyurethane foam,
which is the middle component in both the blockers and insoles,
measures between 2 mm and 7 mm and outweighs the other two
components. The polyurethane foam cushions the foot and provides
shock absorbency and arch support for the foot. Additionally,
the foam has the desirable property of absorbing odor.
Therefore, like the polyurethane in HRL 950279, the polyurethane
foam provides the essential character to both the blockers and
the insoles. As the polyurethane foam is a plastic material, the
blockers and the insoles are properly classified under subheading
6406.99.30, HTSUS, which provides for "Parts of footwear;
removable insoles, heel cushions and similar articles; gaiters,
leggings and similar articles, and parts thereof...Other...Of
other materials...Of rubber or plastics...."
It should be noted that this rationale effects past rulings
such as HRL 084253 dated June 2, 1989. HRL 084253 did not
classify an insole according to GRI 3(b), HTSUS. In determining
that the insole was made "of textile material", we examined the
pre-existing condition of the components used in the manufacture
of the insoles. In HRL 084253, we found a pre-existing textile
plastic laminate as defined in the chapter and explanatory notes
to Chapter 64 and the chapter and explanatory notes to textile
chapters in the HTSUS. We took the position that the intent of
the ENs to Chapter 64 was to apply the products of Chapters 50 to
60 (textile materials) to Chapter 64 and thus, presumably, also
its principles. We stated that since the term "textile
materials" as defined in EN (F) to Chapter 64 applies to all the
material of the insole, application of GRI 3(b), HTSUS, was
inappropriate.
HRL 950279 reconsidered that position and determined that a
GRI 1, HTSUS, analysis was incorrect. To classify finished
insoles differently based on their method of manufacture when
they are basically indistinguishable from one another is
inappropriate. Therefore, in order to ensure uniformity in
classification of insoles, the proper method of classification is
pursuant to GRI 3(b), HTSUS, as a composite good.
HOLDING:
The insoles and blockers are properly classified under
subheading 6406.99.30, HTSUS, which provides for "Parts of
footwear; removable insoles, heel cushions and similar articles;
gaiters, leggings and similar articles, and parts
thereof...Other...Of other materials...Of rubber or plastics...."
Sincerely,
John Durant, Director
Commercial Rulings Division