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NY B85807




June 6, 1997

CLA-2-64:RR:NC:TA:346 B85807

CATEGORY: CLASSIFICATION

TARIFF NO.: 9802.00.5010 ; 6406.10.1000

Ms. Janet S. Cool
Daniel Green Company
Dolgeville, NY 13329-1398

RE: The Classification, User Fees and Country of Origin Marking of a Footwear Upper from the Dominican Republic; CBI-2

Dear Ms. Cool:

In your letter dated May 14, 1997, you requested a tariff classification ruling for a sample of an upper for a woman's moccasin shoe, identified as Style #'s 62940 (suede leather), 62942 (metallic leather) and 62943 (pebbled or textured leather). This moccasin upper, you state, will be assembled in the Dominican Republic from component parts that are of 100% U.S. origin. The assembly of the various upper components will be accomplished by stitching and gluing processes. We assume from your description that the sewing thread and glue will also be of U.S. origin. All of the component parts used in making this upper will be shipped directly from the USA to the Dominican Republic without entering the commerce of any other country.

The sample moccasin upper you have provided has an all leather external surface (which you state can and will have either a smooth, a textured or a metallic finish in a variety of colors), with a glued and sewn-in smooth leather lining, leather topline trim and a small, 1 inch wide elasticized textile gore. This leather upper has a completely closed bottom, and in addition to its various parts being merely stitched and glued together, it has also undergone the more than minor fabrication procedure of being stretched and formed to the size and desired foot shape in a front and back part lasting process. We note that the lasting process changes the item from an "unformed" upper to a "formed" upper as that term is used in Additional U.S. note 4 to HTS Chapter 64.

In Surgikos, Inc. v. United States, USITR, 12 CIT 242, Slip Op 88-35 (Mar. 18, 1988), the CIT held that perforating and fold finishing operations performed after fabricated components produced in the United States were assembled in Mexico into surgical sheets, were not minor in nature and not "incidental to the assembly process". The sheets were deemed not entitled to partial duty free treatment. Similarly, we consider the additional procedure by which this leather moccasin upper was shaped by lasting to be more than an operation merely incidental to the assembly process and so it will be precluded from classification in subheading 9802.00.8040, Harmonized Tariff Schedule of the United States (HTS).

Therefore, this moccasin upper will be classified in subheading 9802.00.5010, HTS, free of duty, as articles, which were returned to the U.S. after having been exported for repairs or alterations, not made pursuant to a warranty and which meet the conditions of U.S. note 2-b to Subchapter II of Chapter 98 of the HTS. We assume that you will be able to supply the port of entry with whatever documents or other evidence it deems necessary to confirm that those conditions have, in fact, been met. CR 10.26 does not indicate what evidence is normally required, and the requirements in CR 10.8 for articles classified in 9802.00.50 are inappropriate since they were written for items that were actually repaired or altered, not manufactured, as is the actual case here. We suggest you discuss the documentation required with the Customs personnel in each port in which you may make entry and/or the U.S. Customs Andean-CBI Help Desk, Miami International Airport, POB 52-3215, Miami, FL 33125-3215. The Help Desk`s telephone number is 305-869-2804 or 2815.

Per Statistical Note 2 to Subchapter II, you must split out on the Customs entry, "the dutiable value, i.e., the value of the foreign processing" and assign to it the classification that would ordinarily apply in the absence of US note 2-b to that Subchapter. Note that in this context, there is never any duty actually payable on this "dutiable value".

The classification that would ordinarily apply to this item is 6406.10.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for shoe uppers, which are formed uppers with insoles which cover all or most of the bottom of the wearer's foot; in which the external surface of the upper, not including the insole, is predominately leather or composition leather; and which are worn by females or is in children's American size 11 1/2 or smaller, or is other than only worn by males, i.e., unisex.

Items classified in 9802.00.5010 do not need to have any country of origin marking when imported into the U.S.

Merchandise Processing Fees described in 19 CFR 24.23 will not apply to this merchandise.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist J. Sheridan at 212-466-5889.

Sincerely,

Paul K. Schwartz
Chief, Textiles & Apparel Branch

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