CLA-2 CO:R:C:M 955606 DFC
John B. Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219
RE: Formed uppers; Parts of footwear; Underfoot; HRL's 089764,
082237, 954790, 950418
Dear Mr. Pellegrini:
In a letter dated December 28, 1993, on behalf of The
Timberland Company and its wholly-owned subsidiary, The Outdoor
Footwear Company, you inquired as to the tariff classification
under the Harmonized Tariff Schedule of the United States
(HTSUS), of certain footwear uppers produced in the Dominican
Republic. You have also submitted a supplemental submission on
this matter dated April 20, 1994. A sample was submitted for
examination.
FACTS:
The sample upper, marked as Exhibit "A," consists of a
leather plug, a vamp and quarters. The upper has a closed bottom
and is neither front-part nor fully back-part lasted. You state
that "the closing has been effected by stitching an 'underfoot'
made of a non-woven polyester material to the bottom of the
upper."
The subject upper will be used to make footwear with
simultaneously-molded bottoms or pre-formed cup soles.
ISSUE:
Is the sample upper considered a "formed upper" for tariff
purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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.
Additional U.S. Note 4 to chapter 64, HTSUS, provides in
pertinent part, as follows:
. . . Provisions for 'formed uppers' covers uppers,
with closed bottoms, which have been shaped by lasting,
molding or otherwise but not by simply closing at the
bottom.
You claim that the merchandise is classifiable either as
uppers, not formed, of leather, under subheading 6406.10.65,
HTSUS, or as other parts of footwear, of leather, under
subheading 6406.99.60, HTSUS.
The rationale for your position is set forth as follows:
The upper type represented by the sample is not lasted.
Its shape is obtained by sewing different pieces of an
upper together. The fact that the "underfoot" closes
the bottom does not create a formed upper because any
shaping of the upper has been created by stitching
only. The upper is neither front-part nor back-part
lasted. As such, it is not a formed upper. See, e.g.,
HRL 089764 dated August 15, 1991, and HRL 082237 dated
May 29, 1990.
The upper alone, i.e., without the underfoot, is not
formed because under Additional U.S. Note 4, HTSUS,
formed uppers must have closed bottoms. The sample is
a combination of an upper and a separate component
known as an underfoot. Since the underfoot is not part
of the upper, the upper is not closed. It is only the
combination upper/underfoot which can be described as
closed. Thus, under the definition of "formed" uppers,
the sample is not a formed upper.
This point is reinforced by reference to the language
of heading 6406, HTSUS, which begins: "Parts of
footwear (including uppers whether or not attached to
soles other than outer soles); . . . ." The provision
for uppers, formed and other, subheading 6406.10,
HTSUS, covers uppers and parts thereof, other than
stiffeners. It is noteworthy that subheading 6406.10,
HTSUS, does not repeat the parenthetical language of
the heading, i.e., "including uppers whether or not
attached to soles other than outer soles." This
difference in language establishes that subheading
6406.10, HTSUS, covers uppers and parts thereof but not
combinations of uppers and soles, other than outer
soles, described in heading 6406, HTSUS. Uppers
attached to soles, other than outer soles, are
classified as parts of footwear. This is clear. It is
equally clear that such combinations are not classified
in subheading 6406.10, HTSUS. This different treatment
of uppers and upper combinations is required by the
difference in language described above.
A combination upper/sole is not classified as an upper
of any sort. Such a combination is "more than" an
upper and as such, it is properly classified as other
parts of footwear. The language of heading 6406,
HTSUS, makes it clear that uppers attached to soles,
other than outer soles, are, in the words of heading
6406, HTSUS, something other than uppers. On the other
hand, subheading 6406.10, HTSUS, refers only to
uppers. By its very language, subheading 6406.10,
HTSUS, does not include uppers in combination with
other footwear parts.
The subject upper/sole combination is not a "formed"
upper. As you have pointed out, the heel counter has
been formed. The shape of the heel counter is achieved
in part by a molding process. However, the upper/sole
combination has not been formed. Additional U.S. Note
4 describes an upper which has been "formed" by
lasting, molding or otherwise. The Note is silent as
to individual upper components. The molding of the
heel counter does contribute to the shape of the heel
portion of the upper. However, the upper itself has
not been shaped by lasting, molding or otherwise.
In HRL 954790 dated September 28, 1993, Customs stated
that "formed uppers do not include: . . . 2. Any upper
which is completely unlasted (i.e., no part of which
has been bent (lasted) inward to the horizontal." When
this definition is applied to the sample, it is not
classified as "formed" uppers. No part of the
upper/sole combination has been bent (lasted) inward to
the horizontal. No portion of the leather has been
bent inward. No portion of the textile underfoot has
any shape at all. Accordingly, under HRL 954790, the
subject combination has not been "lasted" and, by
definition, may not be classified as a "formed" upper.
You state that the subject upper has not been front-part or
fully back part-lasted. However, lasting is not the only method
by which an upper may be shaped. It is our observation that the
shaping of the subject upper could not have resulted from "simply
closing at the bottom" (i.e., shaping of the upper by stitching
only). We believe that the inside back counter [which we cut
out of the shoe] made of some sort of semi-rigid material, which
appears to be plastic, could have gotten its curved shape only by
some kind of molding/lasting process. Specifically, the upper is
not completely unlasted. The plastic piece is already beginning
to curve to the horizontal. See, Headquarters Ruling Letter
(HRL) 950418 dated December 31, 1991.
With respect to HRL 089764 which you cited in support of
your position, we believe that the instant merchandise is easily
distinguishable in that the "non-openness" of the bottom there
was considerably more problematic since the heel pad would have
to be matched to the upper and then assembled, necessarily in
conjunction with a missing insole piece, to produce a "closed"
bottom. Exhibit A already has a "closed" bottom.
You would treat the merchandise as two separate entities,
viz, as an upper and as a combination upper/underfoot. Under
your theory the upper could not be considered as having a closed
bottom since the underfoot is not a part of the upper. Only the
combination upper/underfoot could be described as closed.
Consequently, following the definition of "formed uppers," the
merchandise is not a formed upper. We disagree. Certainly, the
underfoot can be considered as part of the upper because in this
instance it is the equivalent of an insole. Further, as part of
the upper, the underfoot [insole} can be considered as closing
the upper [closed bottom].
We do not agree with your contention that subheading
6406.10, HTSUS, covers "uppers and parts thereof but not
combinations of uppers and soles, other than outer soles,"
described in heading 6406, HTSUS. Your interpretation of heading
6406, HTSUS, is much too narrow in scope. Our interpretation of
the parenthetical phrase is that it is a two-step definition of
uppers covered by heading 6406, HTSUS. First, it includes uppers
attached to soles other than outer soles, and second, it includes
uppers that are not attached to soles. Under this interpretation
there is no need to repeat the parenthetical language of heading
6406, HTSUS, in subheading 6406.10, HTSUS, because the term
"uppers" is defined in heading 6406, HTSUS.
Further, given the definition of "formed uppers" in
Additional U.S. Note 4 to chapter 64, HTSUS, your interpretation
of the scope of subheading 6406.10, HTSUS, would lead to the
emasculation of the provisions for "formed uppers" at the eight
and 10 digit levels.
HOLDING:
The sample upper is considered a "formed" upper for tariff
purposes.
The sample upper is dutiable at the rate of 8.5% ad valorem
under subheading 6406.10.05, HTSUS, if for men, youths and boys,
or at the rate of 10% ad valorem under subheading 6406.10.10, if
for other persons.
Sincerely,
John Durant, Director