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HQ 083991


March 8, 1990

CLA-2 CO:R:C:G 083991 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.6500

Mr. Ted Baier
Director of Shipping and Traffic
Freeman Shoe Company
Beloit, WI 53511

RE: Classification of Leather Footwear Uppers

Dear Mr. Baier:

This is in response to your letter of September 16, 1988, concerning the classification of leather footwear uppers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Two pairs of leather moccasin shoe uppers and their unattached leather heel pads were submitted for our examination.

FACTS:

Both pairs of uppers are of a loafer type with tongues and bands crossing over the vamp at the middle of the shoe. The uppers and leather heel pads were imported from India. The heel pads will be attached to the uppers when they are back-part lasted in the United States. These loafers have oblong shaped holes measuring approximately five inches long and two inches wide. These holes run from the back of the heel to the mid arch. The leather around the heel in both uppers has no tuck and falls into a straight position. The uppers have been front-part lasted but they have not been back-part lasted.

ISSUE:

Whether the leather moccasin shoe uppers imported with unattached leather heel pads are classifiable as "formed uppers" under subheading 6406.10.1000, HTSUSA, or as "other than formed uppers" under subheading 6406.10.6500, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 provides that classification is determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

U.S. Note 4 to Chapter 64 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 Headquarter 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. It is our view that substantially closed means that more of the lower surface than is intended to cover the bottom of the foot is present, than absent." In HRL 082075, Customs held that two moccasin style footwear uppers under review were classifiable under subheading 6406.10.0500, HTSUSA, as parts of footwear, removable insoles, heel cushions and similar articles, uppers and parts thereof: formed uppers, of leather or composition leather, for men, youths and boys. After reconsideration of this position, Customs has modified this ruling to hold that those uppers which have substantial openings cut out of the bottom are not considered to be closed within the meaning of U.S. Note 4 to Chapter 64, HTSUSA.

In the instant case, the sample uppers have a substantial portion of their bottoms cut out and they have not been back-part lasted. Therefore, pursuant to U.S. Note 4 to Chapter 64, HTSUSA, it appears that the instant uppers are not formed uppers. However, because the uppers have been imported with unattached leather heel pads, the issue presented is whether or not these moccasin uppers should be classified as formed uppers.

Since the moccasin's 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.

GRI 2(a) also applies to articles which are entered unassembled or disassembled.

Even if we assume, arguendo, that the uppers and the heel pads are constructively assembled pursuant to GRI 2(a) and, therefore, have closed bottoms, they still do not meet the test for being a formed upper. In order for an upper to be a formed upper it must have a closed bottom and have been shaped by lasting, molding or otherwise but not by simply closing at the bottom. In our decision of December 1, 1988, supra, this office held that certain footwear uppers which were not back-part lasted and needed to be soaked, re-lasted and dried after importation in order to obtain their final shape, were not formed uppers for tariff purposes. Although the instant samples are front-part lasted, it is our observation that they are not back-part lasted. Accordingly, it is Customs position that the instant uppers are not "formed uppers" under U.S. Note 4 to Chapter 64, HTSUSA.

HOLDING:

The sample uppers are classifiable in subheading 6406.10.6500, HTSUSA, as parts of footwear, uppers and parts thereof, other, of leather. The applicable rate of duty is 3.7% ad valorem. The instant merchandise may be entitled to free entry under the General System of Preferences, if otherwise qualified.

Sincerely,

John Durant, Director
Commercial Rulings Division

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