HQ 0950946 - Footwear; unformed uppers; formed uppers; U.S. Note 4(a) to Chapter 64; GRI 2(a); NYRL 864626; HRL 086270 - United States International Trade Commision Rulings

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HQ 950946

June 22, 1992

CLA-2 CO:R:C:M 950946 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.25; 6406.10.90

Mr. John Peterson
Neville, Peterson & Williams
39 Broadway
New York, New York 10006

RE: Footwear; unformed uppers; formed uppers; U.S. Note 4(a) to Chapter 64; GRI 2(a); NYRL 864626; HRL 086270

Dear Mr. Peterson:

This is in response to your letters of December 4, 1991, and April 16, 1992, concerning the classification of slipper uppers, manufactured in the Philippines, under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the slipper uppers were submitted for our examination.

FACTS:

The first sample is a pink quilted slipper upper composed of woven man-made fiber fabric backed with man-made fiberfill. The upper is joined to a sock liner by stitching which encircles the top opening of the upper. The sock liner has an exterior surface of coarse woven man-made fiber material and an interior surface of man-made fiber material which has been napped to simulate fleece. A foam plastic midsole is attached to the bottom of the sock liner by stitching which encircles the heel portion of the sock liner and part of the sides. The front toe section of the midsole is not sewn to the sock liner.

The second sample is a red and blue knit man-made fiber slipper upper which is not padded or otherwise backed. The upper is joined to a sock liner by stitching which encircles the top opening of the upper. A foam plastic midsole is attached to the bottom of the sock liner by stitching which encircles the heel portion of the sock liner and part of the sides. The front toe section of the midsole is not sewn to the sock liner.

The third sample is a quilted slipper upper composed of woven man-made fiber fabric backed with man-made fiberfill. The upper is joined to a sock liner by stitching which encircles the top opening of the upper. This upper does not have a foam plastic midsole attached to the sock liner and it is, therefore, completely open at the bottom.

According to your submission, after importation, the following steps are taken to convert the first two slipper uppers into finished slippers:

1) A rubber outer sole is sewn by machine onto the outer layer of the upper (not to the sock liner). For this step to be accomplished, the excess fabric at the bottom of the outer layer must be turned in and carefully aligned with the outer sole.

2) Following the above attachment, the worker must turn the footwear, by reaching through the open toe portion of the sock liner/midsole and pull the outer sole/ upper assembly completely inside out. When this turning operation is complete, the toe portion of the midsole can be sewn to the accompanying portion of the sock liner, and the midsole can be seated in the outer sole, finishing the slipper.

No information was provided regarding the steps taken to convert the third slipper upper into a finished slipper.

ISSUE:

Are the slipper uppers classified in subheading 6406.10.25, HTSUS, which provides for uppers and parts thereof, other than stiffeners, formed uppers, of textile materials, other, valued not over $3/pair, or in subheading 6406.10.90, HTSUS, which provides for uppers and parts thereof, other than stiffeners, other, other, other, other, of textile materials other than cotton.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

U.S. Note 4 to Chapter 64, HTSUS, 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.

You contend that since the toe sections of the sock liners are not attached to the midsoles, the first two sample uppers should be considered to be open and, therefore, not to have closed bottoms.

In determining whether an upper is formed, one of the factors we look to is whether the bottom of the upper is closed. In the instant case, as the midsole is not sewn all the way around the sock liner, the upper is partially assembled and GRI 2 (a) is applicable. GRI 2(a) provides the following:

(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. The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes to GRI 2(a) provide the following on page 2:

(VII) For the purposes of the Rule, "articles presented unassembled or disassembled" means articles the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only simple assembly operations are involved.

On importation, the toe areas of the sock liners are not stitched to the midsoles. The sewing of the front sections of the sock liners to the midsoles is a simple assembly and the sock liners and midsoles are "constructively assembled" for GRI 2(a) purposes. In addition, the midsoles completely cover the bottoms of the uppers. Therefore, since the uppers and midsoles are constructively assembled, we are of the opinion that the uppers of the first two samples have closed bottoms and the first factor of the test in U.S. Note 4(a) to Chapter 64 is satisfied.

The third sample does not have a midsole attached to its sock liner and the bottom is completely open. Thus, this sample does not meet the definition of a formed upper set forth in U.S. Note 4(a) to Chapter 64, HTSUS. This sample is considered an unformed upper and it is classified in subheading 6406.10.90, HTSUS.

You argue that the first two samples are not formed uppers as they have not acquired their final shape. The fabric forming the external part of the upper is not joined to the sock liner and the excess fabric hangs down. Any shape which the slipper uppers have acquired is due to the fact that flat pieces of material have been stitched together. According to New York Ruling Letter (NYRL) 864626, dated July 18, 1991, this type of shaping is not sufficient to create a formed upper. In NYRL 864626, Customs classified leather boot uppers that were completely open at the bottom and had not been lasted (the edges of the leather pointed straight down) and had no shaping beyond the results of simply stitching the pieces of leather together. Since the upper was to be formed by lasting in addition to sewing, and the lasting was not yet done, Customs held that the upper was unformed.

Furthermore, you contend that the subject slipper uppers are distinguishable from the slipper upper classified in Headquarters Ruling Letter (HRL) 086270, dated April 13, 1990. In HRL 086270, a fabric embroidered upper was stitched to a fabric sock liner/insole which was laminated to a thick layer of foam rubber or plastic and to a fabric edging which encircles the entire insole. After importation, the slipper was completed by attaching an outer sole. HRL 086270 held that the upper components were completely fitted and shaped and look completed. The upper was classified as a formed upper in subheading 6404.10.25, HTSUS.

Based on the samples and information provided, it appears that the subject slipper uppers are meant to be soft and flexible. Sewing is the only method used to shape the subject uppers. Therefore, the shape of the uppers is due primarily to the fact that flat pieces of material are stitched together. This is unlike the leather boot upper in NYRL 864626, which was not shaped primarily by sewing; it was to be lasted after it was imported into the United States. Thus, in the subject case, the type of shaping done to the slipper uppers is sufficient to create formed uppers.

Moreover, while the slipper upper in HRL 086270 may appear to be more formed than the subject uppers, this is a result of different construction methods. The subject uppers are merely sewn to the midsole, not laminated to it, so they are a little less rigid. In both HRL 086270 and this case, the work to be done in the United States involves the attachment of the outer sole. While the backs of the subject slipper uppers may be turned in somewhat on attachment of the outer soles, the slipper uppers' shape on importation is the basic shape the slippers will have after they are finished. Thus, it is our position that the subject slipper uppers are sufficiently advanced toward their final forms and they are considered formed uppers, of textile materials, other, valued not over $3/pair, classified in subheading 6406.10.25, HTSUS.

HOLDING:

The first two slipper uppers are classified in subheading 6406.10.25, HTSUS, which provides for uppers and parts thereof, other than stiffeners, formed uppers, of textile materials, other, valued not over $3/pair.

The third slipper upper is classified in subheading 6406.10.90, HTSUS, which provides for uppers and parts thereof, other than stiffeners, other, other, other, other, of textile materials other than cotton.

Sincerely,

John Durant, Director
Commercial Rulings Division

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