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HQ 086588


June 28, 1990

CLA-2 CO:R:C:G 086588 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.6500

John B. Pelligrini
Attorney at Law
Ross and Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Two eyelet moccasin-type leather uppers

Dear Mr. Pelligrini:

This is in response to your letter of February 26, 1990, on behalf of The Timberland Company, concerning the classification of certain types of footwear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The footwear will be produced in the Dominican Republic, Mexico or other locations. Two samples were submitted for our examination. Although your letter suggests that the subject uppers are properly classified in subheading 6506.10.65, you telephonically advised us that the second digit of the proposed subheading is incorrect and that you are proposing that the uppers should be properly classified in subheading 6406.10.65.

FACTS:

The samples submitted consist of a pair of two eyelet moccasin-type leather uppers marked 393360/75077. They are the right and left of a pair of uppers, man's size 8M. They are front-part and back-part lasted, as imported. These uppers are noted to have a hole in the bottom measuring 4 1/4" long by 3/4" wide. Actual measurement of the hole in the samples submitted shows the stated size of the hole to be a nominal measurement. While the length of the hole in both samples is approximately 4 1/8" long, the width of the hole in each samples differs. In one sample the hole, at the mid-point of the upper, is 3/4" which tapers down to 1/2" in the heel area. The width of the hole in the other sample is uniformly 1/2". (We presume that in course of production a template will be used to cut these holes and that they will uniformly be a minimum of 4 1/4" long by 3/4" wide when imported).

ISSUE:

Are these sample uppers considered "formed uppers" for tariff purposes.

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides the "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.

Additional U.S. Note 4 to Chapter 64, HTSUSA, sets forth the criteria for determining whether an upper is considered a formed upper for tariff purposes. That note reads in pertinent part as follows:

...[p]rovisions 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.

Since, as noted in the ruling request, the sample uppers are front-part and back-part lasted, they meet that part of Additional U.S. Note 4, Supra, regarding uppers which have been shaped by lasting, molding or otherwise, they are formed uppers. However, it is necessary to determine whether they meet the remaining part of Additional U.S. Note 4, Supra, which provides for formed uppers with closed bottoms.

In Headquarters 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. (Emphasis added). It is our view that substantially closed means that more of the lower surface that is intended to cover the bottom of the foot is present, than is absent." In HRL 082573, dated December 28, 1989, this office modified this position stating that we "are now of the opinion that uppers which have substantial openings cut out of the bottoms, as is the case here, are not closed within the meaning of Additional U.S. Note 4 to Chapter 64, Supra.

In Headquarters Ruling Letter (HRL) 085291, dated March 1, 1990, this office noted that the upper samples therein were front-part and back-part lasted. This office also noted inasmuch as certain of the samples therein had substantial openings in their bottom, they cannot be considered uppers for tariff purposes.

Since the sample uppers in this request likewise have a substantial opening in their bottoms, they cannot be considered formed uppers for tariff purposes.

HOLDING:

The sample uppers are classifiable under subheading 6406.10.6500, HTSUSA, as parts of footwear, uppers and parts thereof, other, of leather. The applicable rate of duty is at the general rate of 3.7 percent ad valorem and may be entitled to free entry under the Generalized System of Preference or the Caribbean Basic Economic Recovery Act, if otherwise qualified.

Sincerely,

John Durant, Director
Commercial Rulings Division

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