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HQ 084253


June 2, 1989

CLA-2 CO:R:C:G 084253 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.1540

Mr. Richard Morkwed
Vice President-Distribution
La Crosse Footwear, Inc.
Box 1328
La Crosse, WI 54602

RE: Tariff classification of an insole

Dear Mr. Morkwed:

In a letter dated February 3, 1989 (your file #HS105), you inquired as to the tariff classification of an insole manufactured in Taiwan. A sample was submitted for examination.

FACTS:

The sample insole has an upper layer of a "cross-hatched", non-woven, man-made fabric and two layers of cellular plastics. The plastic has been shaped and partly expanded to cradle the foot in the arch and heel area. In addition, about 50 small holes have been put into the bottom layer and a "cross-hatch" design has been molded into the bottom of its forepart (both are apparently designed to increase air circulation under the foot).

ISSUE:

Whether the insole is "of textile materials" or "of rubber or plastics."

LAW AND ANALYSIS:

In applying the Harmonized Tariff Schedule of the United States (HTSUSA), the Customs Service must follow the terms of the statute. 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.

Explanatory Note F to Chapter 64, HTSUSA, provides that "[s]ubject to the provisions of (E) above, for the purpose of this Chapter the expression 'textile materials' covers the fibres, yarns, fabrics, felts, nonwovens, twine, cordage, ropes, cables etc., of Chapters 50 to 60."

The instant product was cut from a sheet of material with the three layers already laminated together. The cut piece was then only shaped and molded. Thus, the tariff status of that laminated sheet is clearly relevant to whether this insole is "of textile materials" or "of rubber or plastics."

The Explanatory Notes to Chapter 39, HTSUSA, relating to plastics and textile combinations reads in pertinent part as follows:

. . . Otherwise, the classification of plastics and textile combinations is essentially covered by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59. The following products are also covered by this chapter:

. . .

(d) plates, sheets and strip of cellular plastics combined with textile fabrics, felt or nonwovens where the textile is present merely for reinforcing purposes.

Legal Note 3 to Chapter 56, HTSUSA, provides in pertinent part as follows:

Headings 5602 and 5603 cover respectively felt and nonwovens, impregnated, coated, covered or laminated with plastics or rubber whatever the nature of those materials (compact or cellular).

Headings 5602 and 5603 do not, however, cover

(c) plates, sheets or strips of cellular plastics or cellular rubber combined with felt or nonwovens, where the textile material is present merely for reinforcing purposes (chapter 39 or 40).

Legal Note 2 to Chapter 59, HTSUSA, provides in pertinent part as follows:

2. Heading 5903 applies to:

(a) textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: . . .

5. Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 39);

In view of the foregoing, the insole is to be considered a textile if the textile portion is present for more than reinforcing purposes. In this instance, the textile layer is clearly present for more than reinforcement because the textile layer keeps the insole from sticking to bare feet and substantially increases comfort by absorbing moisture.

HOLDING:

The removable insole is classifiable under subheading 6406.99.1540, HTSUSA, as parts of footwear, removable insoles, other, of other materials, of textile materials, of man-made fibers, other, with duty at the rate of 17 percent ad valorem. The applicable textile category is 659.

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 importation of this merchandise to determine the current status of any import restrictions or requirements.

Sincerely,

John Durant, Director

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