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HQ 951508

July 8, 1992

CLA-2 CO:R:C:M 951508 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.05; 6406.10.10; 6406.10.65; 6406.99.60

District Director
U.S. Customs Service
La Puntilla #1
Old San Juan, PR 00903

RE: Protest No. 4909-91-100143; Footwear; Leather Upper; Sock Liner; Constructively Assembled; Goods Shipped in Bulk; HQ 951065; HQ 081999; HQ 088035; HQ 089580

Dear Sir:

This is our decision on Application for Further Review of Protest No. 4909-91-100143, dated October 16, 1991, concerning your action in classifying and assessing duty on certain footwear uppers and accompanying sock liners under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of various styles of leather footwear uppers for both men and women, and accompanying sock liners. The types of uppers which were reclassified by your office and are the subject of this protest are boat shoe uppers and casual shoe uppers. Both types of uppers are front-part and back-part lasted, and have a substantial hole in the bottom. The subject uppers are in some entries imported with an equal number of sock liners, and are in other entries imported with an uneven number of sock liners.

ISSUE:

What is the proper classification of the subject uppers and sock liners under the HTSUS?

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 heading and any relative section and chapter notes.

The merchandise was entered under subheading 6406.10.65, HTSUS, which provides for: "[u]ppers and parts thereof, other than stiffeners: [o]ther: [o]f leather", and under subheading 6406.99.60, HTSUS, which provides for: "[p]arts of footwear; removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: [o]ther: [o]f other materials: [o]f leather." However, the merchandise was liquidated under subheading 6406.10.05, HTSUS, which provides for: "[f]ormed uppers: [o]f leather or composition leather: [f]or men, youths and boys", and under subheading 6406.10.10, HTSUS, which provides for: "[f]ormed uppers: [o]f leather or composition leather: [f]or other persons."

Counsel for the importer argues that the merchandise does not constitute formed uppers, because, at least in the entries with uneven numbers of uppers to sock liners, the uppers and liners are not constructively assembled for classification purposes.

U.S. Note 4 to Chapter 64, HTSUSA, provides, in 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 HQ 088035, dated February 1, 1991, this office stated that "[w]e consider the leather upper and the sock lining to be a formed upper for the following reasons:

1. the upper and sock lining are constructively assembled pursuant to GRI 2(a), HTSUSA;

2. the upper is both front part and back part lasted; and

3. since the upper and sock lining are constructively assembled, we will treat the bottom as being closed."

Because the uppers are fully lasted, they will be considered "formed" if they are "constructively assembled".

GRI 2(a) provides that:

Any reference in a heading to an article shall be taken to include a 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. As was stated in HQ 088483, dated March 19, 1991, "[t]he components are clearly intended to be assembled together, and, with the addition of other pieces, most importantly an outersole, will be sold to consumers as finished footwear."

In HQ 089580, dated September 6, 1991, we classified fully lasted leather uppers, accompanied by an even number of sock liners, as constructively assembled formed uppers. Therefore, based upon HQ 089580 and the above reasoning, the subject entries of uppers, accompanied by an even number of sock liners, are constructively assembled and are classifiable as formed uppers under the HTSUS.

However, counsel argues that the entries with an uneven number of uppers to liners is distinguishable from HQ 089580. We agree. HQ 951065, dated February 23, 1992, dealt with the classification of component parts of stun guns. The issue in that case was whether, for GRI 2(a) purposes, the components made up an unfinished, complete stungun. One shipment of the components contained:

(1) several cartons containing a total of 2,000 printed circuit boards, (2) several cartons containing a total of 2,000 polyform trays, (3) several cartons containing a total of 2,000 injection plastic cases, 1,000 brochures and 2,000 hand ribbon carrying straps, (4) several cartons containing a total of 2,000 plastic individual boxes and (5) one carton containing a total of 10,000 name plates and 10,000 screws.

In HQ 951065, we stated that:

[i]n HQ Ruling 081999 (December 10, 1990), we determined whether components packaged separately in bulk and entered for assembly in the United States were classified as unassembled goods pursuant to General Rule of Interpretation (GRI) 2(a). We found that goods which were not recognized as unassembled goods imported as "kits", but which were packaged in bulk for an assembly operation were not classified as unassembled goods. We held that the components were classified separately under the appropriate headings of the HTSUS.

The components under consideration as entered are not recognized as unassembled stunguns but are entered in bulk for an assembly operation in the United States. The components should be classified separately.

Because many of the entries contain uppers and sock liners in uneven numbers, under HQ 951065 those entries cannot be said to contain constructively assembled formed uppers for classification purposes. The uppers and sock liners are entered in bulk for an assembly operation in the United States, and therefore must be classified separately.

HOLDING:

Entries containing the subject uppers and accompanying even number of sock liners are classifiable under subheading 6406.10.05, HTSUS, which provides for: "[f]ormed uppers: [o]f leather or composition leather: [f]or men, youths and boys", and under subheading 6406.10.10, HTSUS, which provides for: "[f]ormed uppers: [o]f leather or composition leather: [f]or other persons."

Entries containing the subject uppers and accompanying uneven number of sock liners are classifiable under subheading 6406.10.65, HTSUS, which provides for: "[u]ppers and parts thereof, other than stiffeners: [o]ther: [o]f leather", and under subheading 6406.99.60, HTSUS, which provides for: "[p]arts of footwear; removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: [o]ther: [o]f other materials: [o]f leather."

In accordance with the reasoning in this ruling, the protest should be granted in part and denied in part. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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