CLA-2 RR:CR:TE 966429 GGD
John B. Pellegrini, Esquire
McGuireWoods, LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219
RE: Revocation of NY J82823; Men’s Boot Upper Imported with Sock Liner; Not
Formed Upper
Dear Mr. Pellegrini:
This is in response to your request dated April 16, 2003, to reconsider New York Ruling Letter (NY) J82823, issued to you by the Bureau of Customs and Border Protection (CBP) April 7, 2003, on behalf of your client, The Timberland Company. In NY J82823, leather uppers imported with an equal number of unattached sock liners were found to comprise unassembled formed uppers pursuant to General Rule of Interpretation (GRI) 2(a). Samples of each component were submitted with your request. We have reviewed the ruling and have found it to be in error. Therefore, this ruling revokes NY J82823.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. § 1625(c)), notice of the proposed revocation of NY J82823 was published on September 3, 2003, in the Customs Bulletin, Volume 37, Number 36. We note that the comment you submitted on behalf of your client supported the correctness of the proposed action.
FACTS:
The footwear components at issue herein and in NY J82823, are leather uppers for a man’s boot, imported with equal numbers of unattached sock liners. The upper is completely open at the bottom and, although neither front-part nor back-part lasted, is
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shaped by molded plastic stiffeners that have been stitched in at the heel and front vamp. The sock liner is composed of four separate materials in three layers. The top layer (the surface upon which the foot would rest) is made of a combination of leather (at the back) and nonwoven textile material (at the front), with leather making up the majority of the surface area. The middle layer is composed of a foam rubber/plastic and the bottom layer consists of a paperboard material identified as BONTEX®.
Although at the time of importation, the bottom of the upper is not closed, the upper and sock liner, imported together, were found to constitute an unassembled “formed upper” pursuant to GRI 2(a). Therefore, for American men’s sizes 8-1/2 and larger, the article was classified in subheading 6406.10.05, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision 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 leather or composition leather: For men, youths and boys.” For sizes up to, and including, American men’s size 8, the article was classified in subheading 6406.10.10, HTSUSA, the provision for “Parts of footwear...: Uppers and parts thereof...: Formed uppers: Of leather or composition leather: For other persons.”
ISSUE:
Whether the two footwear components, as entered, constitute an unassembled “formed upper” pursuant to GRI 2(a), HTSUSA.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Subheading 6406.10, HTSUS, 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 leather or composition leather."
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Additional U.S. Note 4 to chapter 64, HTSUS, states:
Provisions of subheading 6406.10 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. [Emphasis added.]
The sample goods consist of an upper with an open bottom and a sock liner. Although the upper has not been shaped by lasting, examination of the sample indicates that it has attained a certain degree of shape by the insertion of molded plastic stiffeners at the heel and front vamp. (See Headquarters Ruling Letter (HQ) 958265, dated August 7, 1995, concerning shape imparted by stitched-in counter pieces.) With respect to the legal note’s requirement for closed bottoms, NY J82823 cited to HQ 954790, dated September 28, 1993, for the latter ruling’s statement that:
the term “formed uppers” does not include moccasin uppers with a significant sized hole (the size of a nickel or larger) in the bottom layer whether or not the upper is fully formed (lasted) unless the piece which will cover that opening is in the same shipment.
Considering the sock liner as a piece capable of covering the upper’s opening, NY J82823 also examined the requirements of GRI 2(a), which states:
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.
Drawing from both HQ 954790 and the requirements of GRI 2(a), it was determined in NY J82823 that the sock liner, once assembled to the bottom of the leather boot upper, would cover the upper’s opening (creating a closed bottom), and that the two components therefore had the essential character of a complete or finished “formed upper” entered unassembled.
In your submission, you essentially state that this combination of uppers and sock liners must be classified separately and cannot be constructively assembled because: 1) the upper is neither front-part nor back-part lasted, thus lacking its final shape and ability to have a closed bottom through assembly with only the sock liner; 2) the upper acquires a closed bottom only through post-importation processing (which includes back-part lasting, attachment of an insole component that is not present at
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importation, and steaming/shaping of toe and heel); and 3) the sock liner is never attached to the upper but, after application of an adhesive, is inserted by hand into the essentially complete boot as part of the packing process.
You cite to several CBP rulings (the most persuasive of which appear to be HQ 088483, dated March 19, 1991, and HQ 089580, dated September 6, 1991) to support your contention that uppers must be both front-part and back-part lasted in order for an insole/sock liner to be deemed constructively assembled pursuant to GRI2(a). You also refer to the “constructive assembly” of the upper and sock liner at issue as “fictional” and not within the purview of GRI 2(a), because the formed upper, in reality, is constructed of both imported and domestic articles, or of articles which are imported in different shipments.
In light of the components used, and the further working operations required after importation to assemble a formed upper with a closed bottom, we will not address the absence of lasting or sufficiency of the shaping imparted by the molded plastic stiffeners at the heel and front vamp. In pertinent part, Explanatory Note VII to GRI 2(a) states:
For the purposes of this Rule, “articles presented unassembled or disassembled” means articles the components of which are to be assembled either by means of fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only assembly operations are involved.
No account is to be taken in that regard of the complexity of the assembly method. However, the components shall not be subjected to any further working operation for completion into the finished state. [Emphasis added.]
In this case, the sock liner is not the component that will be assembled to the upper, nor will it cover the opening to form a closed bottom. The sock liner is eventually inserted into the boot and its bottom layer is glued to the top of the insole. The insole is not present at importation, and the insole and upper are subjected to further working operations in order to complete the article into its finished state. Such working operations are not permitted if GRI 2(a) is to apply. We thus find that the two unassembled components, as entered, do not possess the essential character of a complete or finished “formed upper.” GRI 2(a) is inapplicable to the imported components and they must be separately classified.
The sock liner is composed of four distinct materials in three layers, i.e., paperboard (which provides a stable base for attachment to the insole), rubber/plastic (for cushioned comfort), and leather and nonwoven textile (also for comfort), none of which predominates in importance for determining essential character. (See NY 885769, dated May 6, 1993.) The sock liner is therefore classified pursuant to GRI 3(c),
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according to the material provided for in the provision which occurs last in numerical order, i.e., subheading 6406.99.90, HTSUSA, the provision for “Parts of footwear...removable insoles, heel cushions and similar articles...and parts thereof: Other: Of other materials: Other.” The leather boot upper is classified in subheading 6406.10.65, HTSUSA, the provision for “Parts of footwear (including uppers whether or not attached to soles other than outer soles)...: Uppers and parts thereof, other than stiffeners: Other: Of leather.”
HOLDING:
NY J82823, dated April 7, 2003, is hereby revoked.
The leather boot upper is classified in subheading 6406.10.65, HTSUSA, the provision for “Parts of footwear (including uppers whether or not attached to soles other than outer soles)...: Uppers and parts thereof, other than stiffeners: Other: Of leather.” The general column one duty rate is free.
The sock liner is classified in subheading 6406.99.90, HTSUSA, the provision for “Parts of footwear...removable insoles, heel cushions and similar articles...: Other: Of other materials: Other.” The general column one duty rate is free.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division