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HQ 084859


July 31, 1989

CLA-2 CO:R:C:G 084859

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.1000

William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
295 Madison Avenue
New York, NY 10017

RE: Tariff classification of leather footwear uppers

Dear Mr. Maloney:

Your letter dated May 24, 1989, addressed to our New York office concerning the tariff classification and marking requirements applicable to certain leather footwear uppers manufactured in the Dominican Republic, has been referred to this office for a direct reply to you. Samples were submitted for examination.

FACTS:

The upper marked Exhibit 1 is called an open back moccasin upper. The bottom of the upper is completely closed and a midsole is sewn to the bottom.

The upper marked Exhibit 2 is called a closed back moccasin upper. The bottom of the upper is open at the heel. There is a midsole partially attached to the bottom of the upper except at the heel.

ISSUE:

Are the sample uppers considered formed uppers for tariff purposes?

LAW AND ANALYSIS:

Additional U.S. Note 4. is relevant here. It provides in pertinent part that "[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."

It is your opinion that the samples are properly classifiable under subheading 6406.10.6500, HTSUSA, as parts of footwear, uppers and parts thereof, other.

You claim that these uppers cannot be considered "formed uppers" for tariff purposes because they have not been back-part lasted or otherwise lasted or molded to shape prior to importation.

As support for your position you cite Headquarters Ruling Letter 082075 dated December 1 1988, which concluded that moccasin type uppers closed at the bottom, but which were not back-part lasted and required "further processing to attain their final shape" were precluded from classification as "formed uppers."

It should be noted that in the cited ruling samples A, B, and C were found not to be formed uppers solely because they were not back-part lasted, but also because of limited or minimal degrees of shaping.

Although the instant samples are not back-part lasted, it is clear to us that the stitching on the separate, fairly rigid leather midsole gives these uppers much of their ultimate shape, form and size (in particular, only one size and width shoe can now be the final result) and that this process was far more than "simply closing at the bottom." It is our observation that both bottoms are "mostly closed." Consequently, we consider the samples to be formed uppers.

A separate ruling will be issued to you concerning the proper country of origin marking of the samples.

HOLDING:

The samples are classifiable under subheading 6406.10.1000, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, formed uppers, of leather, for other persons. The applicable rate for this provision is 10 percent ad valorem. It is assumed that the finished shoe will be commonly worn by both sexes.

Sincerely,

John Durant, Director

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