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HQ 966539




September 26, 2003

CLA-2:RR:CR:TE JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.6500

Ms. Diane S. Nichols
Cole-Hahn
One Cole-Hahn Drive
Yarmouth, ME 04096-1515

RE: Revocation of HQ 958056; Not Formed Uppers

Dear Ms. Nichols:

This is to notify you that the Bureau of Customs and Border Protection (CBP) has reconsidered Headquarters Ruling Letter (HQ) 958056, issued to you August 28, 1995, wherein CBP classified a leather shoe upper in subheading 6406.10.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). For the reasons that follow, this ruling revokes HQ 958056.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 958056, was published on July 16, 2003, in the Customs Bulletin, Volume 37, Number 29. As explained in the notice, the period within which to submit comments on this proposal ended on August 18, 2003. No comments were received in response to this notice.

FACTS:

In HQ 958056, the shoe upper under consideration was described as follows:

Sample “woven black” is a leather upper created from leather strips woven and shaped on a last, which is stitched to the bottom of a grain leather “underfoot,” resulting in a fully closed bottom. A full length cardboard insole is then inserted into this upper and is held to it, in the rear, by multiple tacks throughout the bottom of the woven leather upper and grain leather “underfoot” into the cardboard. A round hole measuring approximately 2 cm in diameter (the size of a nickel) has been cut out through the leather underfoot and the cardboard insole near the front of this upper’s otherwise completely closed bottom.

The upper was classified in subheading 6406.10.1000, HTSUSA, which provides for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Uppers and parts thereof, other than stiffeners: Formed uppers: Of leather or composition leather: For other persons.”

ISSUE:

Whether an upper with a nickel-sized hole cut out of the bottom has a “closed bottom.”

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

Additional U.S. Note 4 to chapter 64, HTSUS, provides as follows:

Provisions of subheading 6406.10 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.

CBP has generally strictly interpreted Additional U.S. Note 4 and held that if the bottoms of uppers have a hole cut out of them, they are not closed and the uppers are not formed. Most recently, in HQ 561499, CBP ruled that sandals with a plastic footbed in which a nickel-sized hole cut out of the footbed and mid-sole, which would be plugged after importation, did not have closed bottoms. CBP relied on HQ 087458, dated September 19, 1990; HQ 085573, dated December 28, 1989; and HQ 085291, dated March 1, 1990, wherein CBP ruled that because the bottoms had holes, the uppers did not have “closed bottoms.”

For additional rulings finding that uppers are not formed because their bottoms are not closed, see NY 887332, dated July 15, 1993 (leather upper fully lasted to cardboard insole, which is then mostly cut out ruled to be not formed); HQ 089764, dated August 15, 1991 (upper that was front lasted, but not back lasted, and had two holes in the bottom ruled to be not formed); HQ 088483, dated March 19, 1991 (unlasted upper with 3 inch long hole in bottom ruled as not being formed); HQ 085291, dated March 1, 1990 (moccasins with opening in bottoms ruled as not being formed); and HQ 085573, dated December 12, 1989 (leather uppers with opening cut out of bottoms ruled as not being formed); NY F88270, dated June 16, 2000; NY F86334, dated May 4, 2000; NY F82881, dated February 28, 2000; NY F82848, dated February 28, 2000; and NY E88143, dated November 10, 1999.

However, in HQ 958056 and HQ 958966, dated March 26, 1997, CBP ruled that an otherwise formed upper would be classified as formed despite having a hole cut out of its bottom. CBP overlooked the closed bottoms requirement because the uppers were substantially shaped and attached to a footbed. These rulings ignored the plain language of Note 4, requiring formed uppers to have “closed bottoms.” Instead the focus was on the extent of formation of the upper. If the upper was fully formed, but for the hole cut out of the bottom, or the upper had a substantial bottom, albeit with a hole cut out of it, the uppers were considered “formed.” These rulings are inconsistent with our interpretation and application of Note 4, which requires that formed uppers have closed bottoms. Accordingly, concurrent with this ruling, CBP is revoking HQ 958966.

The bottom of the instant upper is not closed because of the nickle sized hole. Accordingly, we find that the instant upper is not a “formed upper.”

HOLDING:

HQ 958056, dated August 28, 1995, is hereby revoked. The subject merchandise is classified in subheading 6406.10.6500, HTSUSA, which provides, for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Uppers and parts thereof, other than stiffeners: Other: Of leather.” The general column one duty rate is Free.

In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles Harmon, Director
Commercial Rulings Division

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