us-cbp-cross-rulings-hq-084344•HQ 084344: Tariff classification of cork and resin ski boot inserts made in West Germany
HQ 084344: Tariff classification of cork and resin ski boot inserts made in West Germany
us-cbp-cross-rulings-hq-084344HQ 084344: Tariff classification of cork and resin ski boot inserts made in West GermanyGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
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."
-2-
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.
-3-
(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.
-4-
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
Commercial Rulings Division
cahill library 084344
6cc Ad NY Seaport
1cc James Sheridan NY Seaport
1cc John Durant
1cc Legal Reference
DFCahill:ph:6/22/89
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