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HQ 082237


March 29, 1990

CLA-2 CO:R:C:G 082237 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.6500

Leonard L. Rosenberg, Esq.
Sandler, Travis & Rosenberg
Attorneys at Law
444 Brickell Avenue
Miami, Florida 33131-2470

RE: Footwear; parts of footwear; uppers and parts thereof; leather; formed uppers

Dear Mr. Rosenberg:

In a letter dated October 28, 1987, you inquired as to the dutiable status of certain footwear uppers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were submitted for examination.

FACTS:

The three samples comprising Group II were produced in Taiwan and were designed for women. The sample labelled style "Nicole" is of the moccasin type construction having a bottom made from a single piece. Styles "Ranger" and "Campsite" have bottoms that are partially stitched. The bottoms of these three samples have an opening in the heel portion which measures approximately 1-1/2 inches long by 3/8 inch wide.

The fifteen styles comprising Group III were produced in the Dominican Republic. Five of the nine styles comprising Group III-A were designed for women. These samples labelled as style nos. 10122, 10175, 10183, 10253, and 10328 have an opening in their bottoms measuring approximately 4-1/2 inches long by 1-1/2 inches wide tapering to about 3/4 to 1 inch wide at the midsole. Four of the samples designed for men and labelled as styles nos. 1002, 1002-A, 10214 and 10287 have an opening in their bottoms measuring approximately 5 inches long by 1 inch wide.

Group III-B consists of three styles of footwear uppers. Two of the samples labelled as style nos. 10191 and 10356 were designed for men while style no. 10182 was designed for women. All three samples have cutouts in the heel area. The openings on the men's uppers are a rounded triangular shape and measure from 2 to 3 inches long and approximately 1-3/4 inches wide at the heel tapering to about 1/2 to 1 inch. The opening in the bottom of the women's style no. 10182 is oval shaped and measures approximately 2 inches long by 1 inch wide.

Group III-C consists of three styles. Two of the samples labelled as style nos. 7740 and 10271 were designed for men while the sample labelled as style no. 4000-1 was designed for women. These uppers have a rectangular opening in their bottoms which measure approximately 2 inches long by 3/4 to 1 inch wide.

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, of leather.

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 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 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 to Chapter 64, HTSUSA, reads in pertinent part as follows:

. . . provisions 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 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 Note 4 to Chapter 64, Supra.

It does not appear that there was any shaping by stretching these uppers on a last. All the shaping of style "Nicole" appears to result from stitching its parts together as does most of the shaping in styles "Ranger" and "Campsite." Styles "Ranger" and "Campsite" were also shaped in the rear by the use of leather laces pulled through a flap and self-knotted to keep the laces from slipping out. To result in the shape that was achieved, this process probably took place while the upper was on some kind of a full or partial last. However, we consider this lacing to be more like "simply closing at the bottom" than "lasting" or "molding." Consequently, the samples in Group II are not formed uppers for tariff purposes.

Inasmuch as the remaining sample uppers have substantial openings 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. Those uppers produced in Taiwan are subject to duty at the general rate of 3.7 percent ad valorem. Those uppers produced in the Dominican Republic may be entitled to free entry under the Generalized System of Preferences or the Caribbean Economic Recovery Act, if otherwise qualified.

Sincerely,

John Durant, Director

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