CLA-2 CO:R:C:M 956554 DFC
Ms. Tracey Ann Ehme
A.W. Fenton Company Inc.
P.O. Box 36064
Columbus, OH 43236-0614
RE: Footwear, parts; Uppers; Formed uppers; U.S. Note 4(a) to
Chapter 64; GRI 2(a); HRL's 088035,950418,954790
Dear Ms. Ehme:
In a letter dated June 2, 1994, on behalf of Rocky Shoes &
Boots Co., you requested a ruling as to the tariff classification
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), of footwear uppers produced in the Dominican
Republic and whether these uppers qualify for duty-free treatment
under CBI (2). You have also requested a country of origin
determination concerning these uppers. A separate response will
be sent to you regarding the country of origin and CBI (2)
issues. A sample textile upper was submitted for examination.
FACTS:
The sample submitted, identified as Outback Series 6"
Handsewn Safari, Style #7502, is a textile/leather upper covering
the ankle and having an "underfoot" which is open at the heel
[not stitched to the upper in the rear half]. The "underfoot,"
referred to as an "insole board" is stated to be of T-35 Texon.
It appears from your letter that your client also intend to
import this upper [no sample submitted] without an "underfoot."
ISSUE:
Is the sample upper considered a "formed upper" for tariff
purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA 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.
The upper without an "underfoot" [open bottom] is
classifiable under subheading 6406.10.9040, HTSUSA, 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, other, other, of man-made
fibers. This classification is based on the assumption that the
upper, exclusive of the lining and the accessories and
reinforcements, is predominately, by weight, of man-made fibers.
Additional U.S. Note 4 to chapter 64, HTSUSA, 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.
GRI 2(a), HTSUSA, 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. 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.
In Headquarters Ruling Letter (HRL) 088035, dated February
1, 1991, involving the classification of an upper imported with a
separate sock lining, 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), HTSUS;
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."
Following HRL 088035, the "underfoot" of the subject upper,
which will clearly close the entire bottom when stitched, is
considered closed. Therefore, according to U.S. Note 4(a) to
chapter 64, the first part of the formed upper test has been met.
The next issue to be decided is whether the upper has been
shaped by "lasting, molding or otherwise but not simply by
closing at the bottom." 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." It is our
observation that the shape of the upper in the toe area could not
have resulted from "simply closing at the bottom (i.e., shaping
of the upper by stitching only). Specifically, the toe area of
the upper was cut open to reveal the presence of a gray counter
material which is used as a reinforcer in the toe area. Further,
we note the heel area of the upper is formed by a plastic inside
counter which has been shaped by a heat process. Consequently,
the sample upper is an unassembled formed upper. See HRL 950418
dated December 31, 1991.
HOLDING:
Sample # 7502 imported without an "underfoot" is dutiable at
the rate of 9% ad valorem under subheading 6406.10.9040, HTSUSA.
The textile category is 669.
Sample # 7502 [assumed to be valued over $3, but not over
$6.50 per pair] imported with an "underfoot" which is open at the
heel is classifiable under subheading 6406.10.3000, HTSUSA, which
provides for parts of footwear (including uppers whether or not
attached to soles other than outer soles), removable insoles,
heel cushions and similar articles, gaiters, leggings and similar
articles, and parts thereof, uppers and parts thereof, other than
stiffeners, formed uppers, of textile materials, other, valued
over $3 but not over $6.50/pair. The applicable rate of duty for
this provision is 90 cents/pr plus 37.5% ad valorem.
The designated textile and apparel category may be
subdivided into parts. If so, the visa and quota category
requirements applicable to the subject merchandise may be
affected. Since part categories are the result of international
bilateral agreements which are subject to frequent renegotiations
and changes, to obtain the most current information available, we
suggest you check, close to the time of shipment the Status
Report on Current Import quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to the importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division