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HQ 083643


June 21, 1989

CLA-2 CO:R:C:G 083643 DC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6401.99.6000

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,
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

"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.

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.

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

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