CLA-2 CO:R:C:M 955539 DFC
Paul G. Giguere, Esq
Sandler, Travis & Rosenberg, P.A.
1341 G Street, N.W.
Washington D.C. 20005-3105
RE: Uppers; Parts of footwear; HRL's 082075, 085573, 085291,
087458
Dear Mr. Giguere:
In a letter dated December 13, 1993, on behalf of Suave Shoe
Co., you inquired as to the tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS), of an
unlasted shoe upper which will be produced in China. A sample
was submitted for examination.
The sample is a four eyelet cotton canvas upper with a
separately sewn-on bottom which consists of fabric combined with
a latex foam. The bottom has a cut-out of approximately three
quarters of an inch by one and three quarters of an inch in the
heel area. The edges of this cut-out are seamed. The upper has
a counter of a thermoplastic material.
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, sets forth the
criteria for determining whether an upper is considered a formed
upper for tariff purposes. That note reads, in pertinent part,
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.
Although your letter states that the sample is unlasted and
therefore unshaped, our examination indicates that it may have
been at least partially shaped by lasting, molding or otherwise.
However, 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 with
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 that inasmuch as certain of the samples
therein had substantial openings in their bottom, they cannot be
considered formed uppers. See also HRL 087458 dated September
19, 1990.
Since the sample upper in issue likewise has a substantial
opening in its bottom, it cannot be considered a formed upper for
tariff purposes.
HOLDING:
The sample upper is classifiable under subheading
6406.10.77, HTSUS, which provides for parts of footwear
(including uppers whether or not attached to soles other than
outer soles), uppers and parts thereof, other than stiffeners,
other than formed uppers, other, of cotton, other. The rate of
duty applicable to this provision is 11.2% ad valorem. The
textile category is 369.
Sincerely,
John Durant, Director
Commercial Rulings Division