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HQ 955539


March 14, 1994

CLA-2 CO:R:C:M 955539 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.77

Paul G. Giguere, Esq
Sandler, Travis & Rosenberg, P.A.
1341 G Street, N.W.
Washington D.C. 20005-3105

RE: Uppers; Parts of footwear; HRL's 082075, 085573, 085291, 087458

Dear Mr. Giguere:

In a letter dated December 13, 1993, on behalf of Suave Shoe Co., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an unlasted shoe upper which will be produced in China. A sample was submitted for examination.

The sample is a four eyelet cotton canvas upper with a separately sewn-on bottom which consists of fabric combined with a latex foam. The bottom has a cut-out of approximately three quarters of an inch by one and three quarters of an inch in the heel area. The edges of this cut-out are seamed. The upper has a counter of a thermoplastic material.

ISSUE:

Is the sample upper considered a "formed upper" for tariff purposes?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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 4 to Chapter 64, HTSUS, 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.

Although your letter states that the sample is unlasted and therefore unshaped, our examination indicates that it may have been at least partially shaped by lasting, molding or otherwise. However, 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 085573, 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 are not closed with the meaning of Additional U.S. Note 4 to Chapter 64, Supra."

In 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 that inasmuch as certain of the samples therein had substantial openings in their bottom, they cannot be considered formed uppers. See also HRL 087458 dated September 19, 1990.

Since the sample upper in issue likewise has a substantial opening in its bottom, it cannot be considered a formed upper for tariff purposes.

HOLDING:

The sample upper is classifiable under subheading 6406.10.77, HTSUS, which provides for parts of footwear (including uppers whether or not attached to soles other than outer soles), uppers and parts thereof, other than stiffeners, other than formed uppers, other, of cotton, other. The rate of duty applicable to this provision is 11.2% ad valorem. The textile category is 369.

Sincerely,

John Durant, Director
Commercial Rulings Division

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