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HQ 952445

December 11, 1992

CLA-2 CO:R:C:M 952445 KCC


TARIFF NO.: 6406.99.30

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.


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.


What is the proper tariff classification of the insoles and blockers under the HTSUS?


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.


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...."


John Durant, Director
Commercial Rulings Division

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