CLA-2 CO:R:C:M 951508 DWS
District Director
U.S. Customs Service
La Puntilla #1
Old San Juan, PR 00903
RE: Protest No. 4909-91-100143; Footwear; Leather Upper;
Sock Liner; Constructively Assembled; Goods Shipped in Bulk;
HQ 951065; HQ 081999; HQ 088035; HQ 089580
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 4909-91-100143, dated October 16, 1991, concerning
your action in classifying and assessing duty on certain footwear
uppers and accompanying sock liners under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of various styles of leather
footwear uppers for both men and women, and accompanying sock
liners. The types of uppers which were reclassified by your
office and are the subject of this protest are boat shoe uppers
and casual shoe uppers. Both types of uppers are front-part and
back-part lasted, and have a substantial hole in the bottom. The
subject uppers are in some entries imported with an equal number
of sock liners, and are in other entries imported with an uneven
number of sock liners.
ISSUE:
What is the proper classification of the subject uppers and
sock liners under the HTSUS?
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 heading and any relative section
and chapter notes.
The merchandise was entered under subheading 6406.10.65,
HTSUS, which provides for: "[u]ppers and parts thereof, other
than stiffeners: [o]ther: [o]f leather", and under subheading
6406.99.60, HTSUS, which provides for: "[p]arts of footwear;
removable insoles, heel cushions and similar articles; gaiters,
leggings and similar articles, and parts thereof: [o]ther: [o]f
other materials: [o]f leather." However, the merchandise was
liquidated under subheading 6406.10.05, HTSUS, which provides
for: "[f]ormed uppers: [o]f leather or composition leather: [f]or
men, youths and boys", and under subheading 6406.10.10, HTSUS,
which provides for: "[f]ormed uppers: [o]f leather or composition
leather: [f]or other persons."
Counsel for the importer argues that the merchandise does
not constitute formed uppers, because, at least in the entries
with uneven numbers of uppers to sock liners, the uppers and
liners are not constructively assembled for classification
purposes.
U.S. Note 4 to Chapter 64, HTSUSA, provides, in 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."
In HQ 088035, dated February 1, 1991, this office stated
that "[w]e consider the leather upper and the sock lining to be a
formed upper for the following reasons:
1. the upper and sock lining are constructively assembled
pursuant to GRI 2(a), HTSUSA;
2. the upper is both front part and back part lasted; and
3. since the upper and sock lining are constructively
assembled, we will treat the bottom as being closed."
Because the uppers are fully lasted, they will be considered
"formed" if they are "constructively assembled".
GRI 2(a) provides 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.
GRI 2(a) also applies to articles which are entered
unassembled or disassembled. As was stated in HQ 088483, dated
March 19, 1991, "[t]he components are clearly intended to be
assembled together, and, with the addition of other pieces, most
importantly an outersole, will be sold to consumers as finished
footwear."
In HQ 089580, dated September 6, 1991, we classified fully
lasted leather uppers, accompanied by an even number of sock
liners, as constructively assembled formed uppers. Therefore,
based upon HQ 089580 and the above reasoning, the subject entries
of uppers, accompanied by an even number of sock liners, are
constructively assembled and are classifiable as formed uppers
under the HTSUS.
However, counsel argues that the entries with an uneven
number of uppers to liners is distinguishable from HQ 089580. We
agree. HQ 951065, dated February 23, 1992, dealt with the
classification of component parts of stun guns. The issue in
that case was whether, for GRI 2(a) purposes, the components made
up an unfinished, complete stungun. One shipment of the
components contained:
(1) several cartons containing a total of 2,000 printed
circuit boards, (2) several cartons containing a total of
2,000 polyform trays, (3) several cartons containing a total
of 2,000 injection plastic cases, 1,000 brochures and 2,000
hand ribbon carrying straps, (4) several cartons containing
a total of 2,000 plastic individual boxes and (5) one carton
containing a total of 10,000 name plates and 10,000 screws.
In HQ 951065, we stated that:
[i]n HQ Ruling 081999 (December 10, 1990), we determined
whether components packaged separately in bulk and entered
for assembly in the United States were classified as
unassembled goods pursuant to General Rule of Interpretation
(GRI) 2(a). We found that goods which were not recognized
as unassembled goods imported as "kits", but which were
packaged in bulk for an assembly operation were not
classified as unassembled goods. We held that the
components were classified separately under the appropriate
headings of the HTSUS.
The components under consideration as entered are not
recognized as unassembled stunguns but are entered in bulk
for an assembly operation in the United States. The
components should be classified separately.
Because many of the entries contain uppers and sock liners
in uneven numbers, under HQ 951065 those entries cannot be said
to contain constructively assembled formed uppers for
classification purposes. The uppers and sock liners are entered
in bulk for an assembly operation in the United States, and
therefore must be classified separately.
HOLDING:
Entries containing the subject uppers and accompanying even
number of sock liners are classifiable under subheading
6406.10.05, HTSUS, which provides for: "[f]ormed uppers: [o]f
leather or composition leather: [f]or men, youths and boys", and
under subheading 6406.10.10, HTSUS, which provides for: "[f]ormed
uppers: [o]f leather or composition leather: [f]or other
persons."
Entries containing the subject uppers and accompanying
uneven number of sock liners are classifiable under subheading
6406.10.65, HTSUS, which provides for: "[u]ppers and parts
thereof, other than stiffeners: [o]ther: [o]f leather", and under
subheading 6406.99.60, HTSUS, which provides for: "[p]arts of
footwear; removable insoles, heel cushions and similar articles;
gaiters, leggings and similar articles, and parts thereof:
[o]ther: [o]f other materials: [o]f leather."
In accordance with the reasoning in this ruling, the protest
should be granted in part and denied in part. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division