CLA-2 CO:R:C:M 950927 NLP
Mr. John Pellegrini
Ross & Hardies
529 Fifth Avenue
New York City, NY 10017
RE: Footwear; unformed leather uppers; heel pads; U.S. Note 4(a)
to Chapter 64; subheading 6406.10.05; HRL 083991; HRL 089764
Dear Mr. Pellegrini:
This is in response to your letter dated November 22, 1991,
requesting the tariff classification of leather footwear uppers
under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples of the footwear uppers were submitted for our
examination.
FACTS:
Sample #1 is a moccasin-type upper that consists of a
leather plug, quarters, instep strap with tassel, back stay and
lining. The upper is front-part lasted but it is not back-part
lasted. The upper has an oblong hole cut in the bottom which
measures five inches in length and between 3/4's of an inch and
1-1/4 inch in width. The upper will be imported with a tan
leather heel pad that is cut to shape. The heel pad will cover
the interior bottom of the finished shoe from the heel to the
mid foot.
Sample #2 is a man's five eyelet leather oxford upper which
is completely open. The upper consists of leather vamp quarters,
back stay and lining. The upper is neither front-part lasted nor
back-part lasted. The upper will be imported with a grey leather
heel pad that is cut to shape. The heel pad will cover the
interior bottom of the finished shoe from the heel to the mid
foot.
The uppers and heel pads will be manufactured in India.
ISSUE:
Whether the leather footwear uppers imported with unattached
heel pads are classifiable as "formed uppers" under subheading
6406.10.05, HTSUS, or as "other than formed uppers" in subheading
6406.10.65, 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 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.
In the instant case, the first sample has a substantial
portion of its bottom cut out and the bottom of the second sample
is completely open. However, because the uppers have been
imported with unattached heel pads, the first issue presented is
whether or not these uppers would be considered to have closed
bottoms.
Since the footwear uppers and heel pads are unattached, GRI
2 is applicable. GRI 2 provides that:
(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. It shall also include a
reference to that article complete or finished (or
falling to be classified as complete or finished
by virtue of this rule), entered unassembled or
disassembled.
The heel pads are clearly intended to be assembled with the
upper and, with the addition of other pieces, most importantly
the outersole, will be sold to consumers as finished footwear.
Customs has taken the position that heel pads and uppers which
were imported together were considered to be constructively
assembled pursuant to GRI 2(a). See, Headquarters Ruling Letter
(HRL) 083991, dated March 8, 1990.
In sample #1, when the upper and the heel pad are
constructively assembled, the heel pad will cover the hole in
the bottom of this upper. Therefore, this upper is considered to
have a closed bottom. However, this upper still does not meet
the test for being classified as a formed upper. While the upper
has been front-part lasted, the back of the shoe has not been
back-part lasted. The back of the shoe has not been completely
shaped. See, HRL 089764, dated August 15, 1991. The upper is
not considered a formed upper and it is classified in subheading
6406.10.65, HTSUS, which provides for parts of footwear, uppers
and parts thereof, other than stiffeners, other, of leather.
In sample #2, the footwear upper will still be mostly open
even after the heel pad is inserted. Additionally, this shoe has
not been shaped at all. It has not been front-part or back-part
lasted. Thus, sample #2 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 also
classified in subheading 6406.10.65, HTSUS.
HOLDING:
The leather uppers and leather heel pads are classifiable
in subheading 6406.10.65, HTSUS, which provides for parts of
footwear, uppers and part thereof, other than stiffeners, other,
of leather. As the merchandise is manufactured in India it will
be entitled to duty free entry under the Generalized System of
Preferences, if all applicable requirements are met.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 CC AD NY Seaport
1 CC NIS Sheridan
1 CC Legal Reference