HQ 086027: Reconsideration of New York Ruling Letter 846364 concerning the classification of a woman's textile slipper

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 086027

                          March 5, 1990

CLA-2 CO:R:C:G 086027  WAW

CATEGORY:  Classification

TARIFF NO.:  6404.19.35

Mr. Jo Mammato
Jam, Inc.
P.O. Box 414
Whitestone, N.Y.  11357

RE:  Reconsideration of New York Ruling Letter 846364 concerning
     the classification of a woman's textile slipper

Dear Mr. Mammato:

     This letter is in response to your request for a
reconsideration of New York Ruling Letter 846364, dated November
9, 1989, concerning the classification of a woman's textile
slipper under the Harmonized Tariff Schedule of the United States
(HTSUS).  A sample of the merchandise was submitted along with
your request.

FACTS:

     The submitted sample is a woman's ballet style shoe.  The
shoe has an unlined textile (lycra) upper with an elasticized
topline and a unit molded plastic bottom.  The upper is stitched
to a lip that protrudes around the side of the plastic bottom
while the slipper is turned inside out.  The inside sock lining
of the slipper at the toe has not been stitched closed to allow
for the insertion of a separate insole after importation.  Based
upon the component material breakdown provided by the importer,
the shoe is comprised of over 10 percent by weight of rubber and
plastics.

     In New York Ruling Letter 846364, dated November 9, 1989,
Customs held that the sample woman's textile slipper, in its
condition as imported, was properly classifiable under subheading
6404.19.35, HTSUS, due to the fact that the sample was
essentially a "completed and wearable footwear item."

     In two letters dated November 17, 1989 and November 21,
1989, the importer asked for a reconsideration of New York Ruling
Letter 846364.  The importer maintains that the sample article
should not be classified as "unfinished footwear" under
subheading 6404.19.35, HTSUS, but rather, as "parts of footwear"
under subheading 6406.10.60, HTSUS.  The importer states that
the article in its present condition cannot be sold to consumers,
nor would any consumer consider purchasing the article.  He
asserts that the footwear in its present condition would be
uncomfortable to the wearer, since it lacks any insole for
cushioning.  Moreover, he contends that the footwear would
rapidly deteriorate and tear apart if worn in its present
condition, since it has not been stitched closed on the inside of
the sock lining at the toe.

ISSUE:

     Whether the sample merchandise is classifiable as
"unfinished footwear" or as "parts of footwear" for tariff
purposes?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     General Rule of Interpretation 2(a) provides in pertinent
part:

     (a) 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
     (emphasis provided).

Moreover, the Explanatory Notes to GRI 2(a), which constitute the
official interpretation of the tariff at the international level,
state the following:

     (I) The first part of Rule 2(a) extends the scope of
     any heading which refers to a particular article to
     cover not only the complete article but also that
     article incomplete or unfinished, provided that, as
     presented, it has the essential character of the
     complete or finished article.

     It is our position that the sample slipper is "unfinished
footwear" based on the above-referenced tariff provisions.  It is
evident that all of the component parts characteristically
associated with a slipper have already been included in the
article in its imported condition.  The upper and outer sole of
the slipper are substantially complete.  All that remains to be
done to the shoe once it is imported into the United States is
for the insole to be inserted and the front sock seam to be
stitched closed.  Overall, the article as imported looks and
functions very much like a slipper, and although not complete,
provides a total covering for the foot.  Accordingly, it is
Customs position that the sample merchandise is properly
classifiable as "unfinished footwear" under subheading
6404.19.35, HTSUS, and not as "parts of footwear" under
subheading 6406.10.60, HTSUS.

     Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), requires that, "unless excepted, every article of foreign
origin (or its container, as provided in subsection (b) hereof)
imported into the United States shall be marked in a conspicuous
place as legibly, indelibly and permanently as the nature of the
article (or container) will permit in such manner as to indicate
to an ultimate purchaser in the United States the English name of
the country of origin of the article." The primary purpose of the
country of origin marking statute is to "mark goods so that at
the time of purchase the ultimate purchaser may, by knowing where
the goods were produced, be able to buy or refuse to buy them, if
such marking should influence his will." National Juice Products
Association v. United States, 10 CIT 48, 628 F. Supp. 978 (1986),
and United States v. Friedlaender & Co., 27 CCPA 297, 302,
C.A.D. 104 (1940).  The regulations implementing the requirements
and exceptions to 19 U.S.C. 1304 are set forth in the Code of
Federal Regulations, 19 CFR Part 134.

     Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304.  The ultimate purchaser is defined in section
134.1(d), Customs Regulations (19 CFR 134.1(d)), as generally the
last person in the United States who will receive the article in
the form in which it was imported.  If the imported article will
be used in manufacture, the manufacturer may be the ultimate
purchaser if he subjects the imported article to a process which
results in a substantial transformation of the article.  In such
case, the article itself is excepted from marking pursuant to
section 134.35, Customs Regulations (19 CFR 134.35), and only the
outermost container of the imported article must be marked.

     A substantial transformation occurs when articles lose their
identity and become new articles having a new name, character or
use.  United States v. Gibson-Thomsen Co., 27 CCPA 267 at 270
(1940), National Juice Products Association v. United States, 10
CIT 48, 628 F. Supp. 978 (1986), Koru North America v. United
States, 12 CIT ___, 701 F. Supp. 229 (CIT 1988).

     In the instant case, the sample merchandise in its imported
condition is a substantially complete slipper and has all of the
physical characteristics of a slipper.  Although the slipper will
undergo additional operations in the United States, we have
determined that it is essentially a completed and wearable
footwear item.  The imported article has the shape and form of a
complete slipper as well as a closed bottom.  Therefore, since
the sample slipper will not be substantially transformed in the
United States, the retail purchaser and not the United States
manufacturer is the ultimate purchaser.  Thus, the imported
article must be individually marked to indicate China as the
country of origin to the retail purchaser in the United States.

HOLDING:

     The sample merchandise is classifiable as footwear, in which
the upper's external surface is predominately of textile
materials; in which the external surface of the outer sole is
predominately rubber and/or plastics; which is other than
athletic footwear; which is not designed to be a protection
against water, oil, or cold or inclement weather; which does not
have a foxing like band; and which is 10 percent or more by
weight of rubber and/ or plastics, under subheading 6404.19.3500,
HTSUSA.  The applicable rate of duty is 37.5 percent ad valorem.

     The sample slipper, described above, is not substantially
transformed in the United States and must be individually marked
to indicate the country of origin to the retail purchaser in the
United States.

     New York Ruling Letter 846364, dated November 9, 1989, is
hereby affirmed.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division