CLA-2 CO:R:C:M 950946 NLP
Mr. John Peterson
Neville, Peterson & Williams
39 Broadway
New York, New York 10006
RE: Footwear; unformed uppers; formed uppers; U.S. Note 4(a) to
Chapter 64; GRI 2(a); NYRL 864626; HRL 086270
Dear Mr. Peterson:
This is in response to your letters of December 4, 1991, and
April 16, 1992, concerning the classification of slipper uppers,
manufactured in the Philippines, under the Harmonized Tariff
Schedule of the United States (HTSUS). Samples of the slipper
uppers were submitted for our examination.
FACTS:
The first sample is a pink quilted slipper upper composed of
woven man-made fiber fabric backed with man-made fiberfill. The
upper is joined to a sock liner by stitching which encircles the
top opening of the upper. The sock liner has an exterior
surface of coarse woven man-made fiber material and an interior
surface of man-made fiber material which has been napped to
simulate fleece. A foam plastic midsole is attached to the
bottom of the sock liner by stitching which encircles the heel
portion of the sock liner and part of the sides. The front toe
section of the midsole is not sewn to the sock liner.
The second sample is a red and blue knit man-made fiber
slipper upper which is not padded or otherwise backed. The upper
is joined to a sock liner by stitching which encircles the top
opening of the upper. A foam plastic midsole is attached to the
bottom of the sock liner by stitching which encircles the heel
portion of the sock liner and part of the sides. The front toe
section of the midsole is not sewn to the sock liner.
The third sample is a quilted slipper upper composed of
woven man-made fiber fabric backed with man-made fiberfill. The
upper is joined to a sock liner by stitching which encircles the
top opening of the upper. This upper does not have a foam
plastic midsole attached to the sock liner and it is, therefore,
completely open at the bottom.
According to your submission, after importation, the
following steps are taken to convert the first two slipper uppers
into finished slippers:
1) A rubber outer sole is sewn by machine onto the
outer layer of the upper (not to the sock liner). For
this step to be accomplished, the excess fabric at the
bottom of the outer layer must be turned in and
carefully aligned with the outer sole.
2) Following the above attachment, the worker must turn
the footwear, by reaching through the open toe portion
of the sock liner/midsole and pull the outer sole/
upper assembly completely inside out. When this
turning operation is complete, the toe portion of the
midsole can be sewn to the accompanying portion of the
sock liner, and the midsole can be seated in the
outer sole, finishing the slipper.
No information was provided regarding the steps taken to convert
the third slipper upper into a finished slipper.
ISSUE:
Are the slipper uppers classified in subheading 6406.10.25,
HTSUS, which provides for uppers and parts thereof, other than
stiffeners, formed uppers, of textile materials, other, valued
not over $3/pair, or in subheading 6406.10.90, HTSUS, which
provides for uppers and parts thereof, other than stiffeners,
other, other, other, other, of textile materials other than
cotton.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
U.S. Note 4 to Chapter 64, HTSUS, provides in pertinent part
the following:
...[p]rovisions for 'formed uppers' cover uppers,
with closed bottoms, which have been shaped by lasting,
molding or otherwise but not by simply closing at the
bottom.
You contend that since the toe sections of the sock liners are
not attached to the midsoles, the first two sample uppers should
be considered to be open and, therefore, not to have closed
bottoms.
In determining whether an upper is formed, one of the
factors we look to is whether the bottom of the upper is closed.
In the instant case, as the midsole is not sewn all the way
around the sock liner, the upper is partially assembled and GRI 2
(a) is applicable. GRI 2(a) provides the following:
(a) any reference in a heading to an article shall be
taken to include 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.
GRI 2(a) also applies to articles which are entered unassembled
or disassembled. The Harmonized Commodity Description and Coding
System (HCDCS) Explanatory Notes to GRI 2(a) provide the
following on page 2:
(VII) For the purposes of the Rule, "articles presented
unassembled or disassembled" means articles the
components of which are to be assembled either by
means of simple fixing devices (screws, nuts,
bolts, etc.) or by riveting or welding, for
example, provided only simple assembly operations
are involved.
On importation, the toe areas of the sock liners are not
stitched to the midsoles. The sewing of the front sections of
the sock liners to the midsoles is a simple assembly and the sock
liners and midsoles are "constructively assembled" for GRI 2(a)
purposes. In addition, the midsoles completely cover the bottoms
of the uppers. Therefore, since the uppers and midsoles are
constructively assembled, we are of the opinion that the uppers
of the first two samples have closed bottoms and the first factor
of the test in U.S. Note 4(a) to Chapter 64 is satisfied.
The third sample does not have a midsole attached to its
sock liner and the bottom is completely open. Thus, this sample
does not meet the definition of a formed upper set forth in U.S.
Note 4(a) to Chapter 64, HTSUS. This sample is considered an
unformed upper and it is classified in subheading 6406.10.90,
HTSUS.
You argue that the first two samples are not formed uppers
as they have not acquired their final shape. The fabric forming
the external part of the upper is not joined to the sock liner
and the excess fabric hangs down. Any shape which the slipper
uppers have acquired is due to the fact that flat pieces of
material have been stitched together. According to New York
Ruling Letter (NYRL) 864626, dated July 18, 1991, this type of
shaping is not sufficient to create a formed upper. In NYRL
864626, Customs classified leather boot uppers that were
completely open at the bottom and had not been lasted (the edges
of the leather pointed straight down) and had no shaping beyond
the results of simply stitching the pieces of leather together.
Since the upper was to be formed by lasting in addition to
sewing, and the lasting was not yet done, Customs held that the
upper was unformed.
Furthermore, you contend that the subject slipper uppers are
distinguishable from the slipper upper classified in
Headquarters Ruling Letter (HRL) 086270, dated April 13, 1990.
In HRL 086270, a fabric embroidered upper was stitched to a
fabric sock liner/insole which was laminated to a thick layer of
foam rubber or plastic and to a fabric edging which encircles the
entire insole. After importation, the slipper was completed by
attaching an outer sole. HRL 086270 held that the upper
components were completely fitted and shaped and look completed.
The upper was classified as a formed upper in subheading
6404.10.25, HTSUS.
Based on the samples and information provided, it appears
that the subject slipper uppers are meant to be soft and
flexible. Sewing is the only method used to shape the subject
uppers. Therefore, the shape of the uppers is due primarily to
the fact that flat pieces of material are stitched together.
This is unlike the leather boot upper in NYRL 864626, which was
not shaped primarily by sewing; it was to be lasted after it was
imported into the United States. Thus, in the subject case, the
type of shaping done to the slipper uppers is sufficient to
create formed uppers.
Moreover, while the slipper upper in HRL 086270 may appear
to be more formed than the subject uppers, this is a result of
different construction methods. The subject uppers are merely
sewn to the midsole, not laminated to it, so they are a little
less rigid. In both HRL 086270 and this case, the work to be
done in the United States involves the attachment of the outer
sole. While the backs of the subject slipper uppers may be
turned in somewhat on attachment of the outer soles, the slipper
uppers' shape on importation is the basic shape the slippers will
have after they are finished. Thus, it is our position that the
subject slipper uppers are sufficiently advanced toward their
final forms and they are considered formed uppers, of textile
materials, other, valued not over $3/pair, classified in
subheading 6406.10.25, HTSUS.
HOLDING:
The first two slipper uppers are classified in subheading
6406.10.25, HTSUS, which provides for uppers and parts thereof,
other than stiffeners, formed uppers, of textile materials,
other, valued not over $3/pair.
The third slipper upper is classified in subheading
6406.10.90, HTSUS, which provides for uppers and parts thereof,
other than stiffeners, other, other, other, other, of textile
materials other than cotton.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 CC A.D. NY Seaport
1 CC Legal Reference
1 CC Jim Sheridan