CLA-2 CO:R:C:G 087458 ALS
Ms. Cheri Gravatt
Import Manager
The Florsheim Shoe Company
130 South Canal Street
Chicago, Illinois 60606-3999
RE: Moccasin-Type Leather Uppers
Dear Ms. Gravatt:
This is in reference to your letter of May 2, 1990,
requesting a binding ruling on the classification and marking of
a leather footwear upper to be produced in Haiti and completed in
the United States. A sample was submitted for examination.
FACTS:
The sample submitted consists of a two eyelet moccasin-type
leather upper. It is blue-green in color and appears to be
designed for a man's right foot. It is front-part and back-
part lasted. It has an elliptical hole in the bottom commencing
about 1 inch forward of the rear edge of the heel. The hole is
approximately 2 1/2 inches long and approximately 7/8 inch wide
at one end of the hole and approximately 5/8 inch wide at the
opposite end of the hole.
ISSUE:
Is the sample upper considered a "formed upper" for tariff
purposes?
LAW AND ANALYSIS
Classification of goods under the Harmonized Tariff Schedule
of the United States (HTSUS) is governed by the General Rules of
Interpretation (GRI's). GRI 1 provides the "classification shall
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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, sets forth the
criteria for determining whether an upper is considered a formed
upper for tariff purposes. That note reads in pertinent as
follows:
...[p]rovisions 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.
Since the sample upper is front-part and back-part lasted, it
meets that part of Additional U.S. Note 4, Supra, regarding
uppers which have been shaped by lasting, molding or otherwise.
They are formed uppers. It is thus necessary to consider whether
they meet the remaining part of Additional U.S. Note 4, Supra,
which provides for formed uppers with closed bottoms.
In Headquarters Ruling Letter (HRL) 082075, dated December
1, 1988, this office stated that "[w]e construe the phrase closed
bottoms as uppers which are substantially closed. (Emphasis
added). It is our view that substantially closed means that more
of the lower surface that is intended to cover the bottom of the
foot is present, than is absent." In HRL 085573, dated December
28, 1989, this office modified this position stating that we "are
now of the opinion that uppers which have substantial openings
cut out of the bottoms are not closed within the meaning of
Additional U.S. Note 4 to Chapter 64, Supra."
In HRL 085291, dated March 1, 1990, this office noted that
the upper samples therein were front-part and back-part lasted.
This office also noted inasmuch as certain of the samples therein
had substantial openings in their bottom, they cannot be
considered uppers for tariff purposes.
Since the sample upper in this request likewise has a
substantial opening in its bottom, it cannot be considered a
formed upper for tariff purposes.
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For the same reason, the sample upper is not required to be
individually marked to indicate its country of origin. The
sample falls within the scope of several previous rulings which
make it clear that if there is a substantial opening or cut-out
in the upper which can only be closed with additional material in
an additional manufacturing process performed in the U.S., the
substantial transformation test is met. As such, the U.S.
manufacturer is considered the ultimate purchaser and marking of
only the outermost container in which the upper reaches the
ultimate purchaser is required. See HQ 085726, March 6, 1990, HQ
073078, September 30, 1983, HQ 721106, August 23, 1983, HQ
073307, October 28, 1983.
HOLDING:
The sample upper is classifiable under subheading
6406.10.6500, HTSUS, as parts of footwear, uppers and parts
thereof, other, of leather. The applicable rate of duty is at
the general rate of 3.7 percent ad valorem. The upper may be
entitled to duty free entry under the Generalized System of
Preferences or the Caribbean Basin Economic Recovery Act, if
otherwise qualified.
Since the sample uppers will be substantially transformed in
the United States, the U.S. manufacturer will be the ultimate
purchaser and it is only necessary for the outermost container in
which the uppers reach such purchaser to be marked. Individual
marking of the sample uppers is not required.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: A.D., New York Seaport
1cc: John Durant
1cc: NIS J. Sheridan
087458 Moccasin-type uppers
ALSARASKY 9/11/90 9/12/90 9/18/90