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HQ 084344


July 31, 1989

CLA-2 CO:R:C:G 084344 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.90

Mr. James L. Gregory
President
C.F. Liebert, Inc.
P.O. Box L
Blaine, Washington 98230

RE: Tariff classification of cork and resin ski boot inserts made in West Germany

Dear Mr. Gregory:

Your letter dated April 4, 1989, addressed to our Blaine office concerning the tariff classification of a cork and resin ski boot insert "insole", half insert "heel cushion", and a semicircular heel piece, has been referred to this office for a direct reply to you. Samples were submitted for examination.

FACTS:

The samples are not shaped to a particular individual's foot size when imported. However, the retailer, who is specially trained and has specially designed equipment, will heat the inserts and "mold" them around the foot of the wearer. As worn, these are "made to measure", but we do not consider them to be excluded from Chapter 64, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), by reason of Note 1(d) thereto as "orthopedic appliances." Their purpose is to keep the foot from sliding inside the boot during strenuous athletic activities and, thus, to improve the athlete's performance. They are not designed to correct any deformity in the wearer's foot. They are called in the enclosed pamphlet, "SKI-THOTIC", but they are not actual orthotic devices. The pamphlet states that it is "not a medical, corrected or corrective device."

It is your position that the samples are classifiable under subheading 6406.99.30, HTSUSA, as parts of footwear, removable insoles, heel cushions and similar articles, other, other, of other materials, of rubber or plastics.

ISSUE:

What material imparts the essential character to the samples?

LAW AND ANALYSIS:

In applying the 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.

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."

We note that the samples of rubber or plastics are classifiable under subheading 6406.99.30, HTSUSA, or under subheading 6406.99.90, HTSUSA, if of cork, or under subheading 6406.99.15, HTSUSA, if of textile materials. When goods are prima facie classifiable under two or more headings or subheadings in the HTSUSA, classification must be determined based on the sequential application of the principles set out in GRI 3, HTSUSA, which reads 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.

Pieces which are a mixture of cork particles and rubber and plastic are the subject of the Explanatory Note (EN) to heading 45.04, which states that [a]gglomerated cork is manufactured by agglomerating crushed, granulated or ground cork generally under heat and pressure either: (1) With an added binding substance (e.g. unvulcanized rubber, glue, plastics, tar, gelatin) . . ." These pieces meet that general description. We assume that there is some amount of cork that would be too small a percent of the whole for a cork/rubber mixture to be considered "agglomerated cork" but we are not of the opinion that is the case here even though you state that the material is only 30 percent by weight of cork. It is true that the rubber added has allowed the article to be shaped or molded. However, following the EN, that is one of the standard benefits of agglomerated cork. The EN does state that "[a]gglomerated cork retains most of the properties of natural cork . . . " The fact that the insole made by joining layers of the material and fabric, is stamped "Superfeet Kork", shows that you consider the "cork" aspect to be commercially significant, and we agree with that view. The cork is certainly the predominant material in appearance and by volume

The full insole is cut from a laminated sheet of agglomerated cork and textile fabric. The only specific discussion of this combination is in the EN to heading 45.04, which states that "[a]gglomerated cork of this heading may be . . . reinforced by backing with paper or cloth." This statement has no application here because the fabric layer is present for comfort and moisture absorption, not only as a reinforcement. Also, it is not a backing material, but the layer that will be exposed in normal use.

In view of the foregoing, the samples are considered composite goods within the meaning of GRI 3(a), HTSUSA. Inasmuch as we do not consider the agglomerated cork layer, the thermoplastic resins or the textile materials as imparting the essential character to the samples, we are of the opinion that relative specificity is not relevant and GRI 3(c) applies. Since subheading 6406.99.90, HTSUSA, appears last in numerical order, classification thereunder is appropriate.

HOLDING:

The samples are classifiable under subheading 6406.99.90, HTSUSA, as parts of footwear, removable insoles, heel cushions and similar articles, other, of other materials, other, with duty at the rate of 18 percent ad valorem.

Sincerely,

John Durant, Director

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