CLA-2 R:C:M 958265 DFC
Ms. Kelly M. Callahan
Traffic Manager
New Balance Athletic Shoe, Inc.
5 S. Union St.
Lawrence MA 01841
RE: Footwear; Formed uppers; HRL's 956112, 950946; 073307
Dear Ms. Callahan:
In a letter dated July 7, 1995, you inquired as to the
tariff classification under the Harmonized Tariff Schedule of the
United States (HTSUS), of a footwear upper. A sample was
submitted for examination.
FACTS:
The sample submitted, identified as Style M705WN, is a mesh
fabric slip-lasted upper which has not been completely sewn to
close the bottom. Over a dozen substantial (imitation leather)
plastic pieces are stitched onto it, basically in the area that
will be "external" in the finished shoe. A semi-rigid inside
back counter has been bent, probably by hand, into a curve and
stitched at both of its ends to the large, imitation leather,
outside back counter-side flash-anchor piece. This gives the
back of the upper the rounded, basically semi-circular shape of a
shoe. This upper will be used after importation in the
manufacture of athletic footwear.
You maintain that the Style M705WN is an unformed upper
classifiable under subheading 6406.10.85, 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, other, uppers of which less than 50
percent of the external surface area (including any leather,
rubber or plastics accessories or reinforcements such as
mentioned in note 4(a) to this chapter) is textile materials.
The applicable rate of duty for this provision is 8.6% ad
valorem.
ISSUE:
Is Style M705WN 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]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
Footwear is provided for in Chapter 64, HTSUS. 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.
Heading 6406, HTSUS, provides in pertinent part, for parts
of footwear (including uppers whether or not attached to soles
other than outer soles). . . . Uppers and parts thereof, other
than stiffeners are provided for in subheading 6406.10, HTSUS.
Breakouts at the 8 and 10 digit level are determined according to
component material and value.
Style M705WN was one of the styles ruled on in HRL 956112
dated July 25, 1995. The sample of the style before us differs
from that ruled on in HRL 956112 in that about 4 inches of the
seam down the middle of the bottom of the slip-lasted upper has
been left unstitched. In determining whether an upper is formed,
one of the factors we look to is whether the bottom of the upper
is closed. Inasmuch as the upper of Style M705WN is partially
assembled, GRI 2(a), HTSUS, is applicable. GRI 2(a), HTSUS,
reads, as follows:
(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.
The Harmonized Commodity Description and Coding System
Explanatory Notes to the HTSUS (EN), although not dispositive, or
legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128
(August 23, 1989).
GRI 2(a), HTSUS, applies to articles which are entered
unassembled or disassembled. EN (VII) to GRI 2(a) reads, as
follows:
(VII) For the purposes of the Rule, "articles presented
unassembled or disassembled" means articles the
components of which are to be assembled either by
means of simple fixing devices (screws, nuts,
bolts, etc.) or by riveting or welding, for
example, provided only simple assembly operations
are involved.
The additional stitching necessary to finish joining
together the 2 sides of the seamed sock [bottom] is a "simple
assembly" and the 2 sides of the seamed sock are "constructively
assembled" within the purview of GRI 2(a), HTSUS, supra.
Therefore, since the seamed sock is "constructively assembled,"
it is our opinion that Style M705WN has a closed bottom. See HRL
950946 dated June 22, 1992, wherein a sewing operation was
considered a "simple assembly." See, also HRL 073307 dated
October 28, 1983.
HOLDING:
Style M705WN is a formed upper classifiable under subheading
6406.10.35, 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,
formed uppers of textile materials, other, valued over $6.50 but
not over $12/pair. The applicable rate of duty for this
provision is 84.4 cents per pair plus 18.7% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division