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NY N004383




January 5, 2007

CLA-2-64:RR:SP:247

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.10.40

Ms. Stacey Nesseth
Red Wing Shoe Company
314 Main Street
Red Wing, MN 55066-2337

RE: The tariff classification of footwear uppers

Dear Ms. Nesseth:

In your letter dated December 7, 2006, you requested a tariff classification ruling for four styles of boot uppers.

You have submitted samples identified as 825X, 826X, 3880X and 3881X. All four sample uppers cover the ankle and have been shaped by lasting, molding or otherwise. You identify the uppers as “waterproof.” You state that the uppers identified as 826X, 825X and 3880X are composed of textile material and the upper identified as 3881X is composed of textile material and leather with leather accounting for 42.5 percent of the external surface area. The uppers all have an approximately 1 inch round hole cut out of the bottom of a “Cellouse Texon” insole board. However there is another layer of material that closes the bottom of the uppers that has not been cut. All styles are valued over $12/pair.

You ask specifically:

Do the samples provided with this request have an unclosed bottom? Are the samples provided with this request unformed uppers? Is the upper represented by sample 3881X properly classified under subheading 6404.10.6500 of HTSUS? Are the uppers represented by samples 826X, 825X and 3880X properly classified under subheading 6404.10.9040 of the HTSUS?

Additional U.S. Note 4, Chapter 64, Harmonized Tariff Schedule of the United States (HTSUS) provides that 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 the bottom.

Treasury Decision (T.D.) 93-88 FOOTWEAR DEFINITIONS dated October 25, 1993 provides that, in general, “formed uppers” include all items which have a layer of material between most of the foot and the ground, and which, after lacing or buckling, if needed, will stay on the foot if worn in the condition as imported and which are shaped to fit the human foot.

HQ 966148 dated September 26, 2003 stated the position of United States Customs and Border Protection (CBP) regarding the classification of formed uppers. That ruling cites previously issued rulings that held that if a hole is cut in the bottom of a completely formed upper, that upper does not have a “closed bottom” and therefore is not a “formed upper” for tariff classification purposes. Generally, two requirements must be met in order for an upper to be considered formed; (1) the upper material must be shaped, and (2) the bottoms must be completely closed.

In response to your questions;

The samples provided with this request meet the CBP requirements for “formed uppers” (i.e. the upper material is shaped and the bottoms are completely closed. The samples provided with this request are “formed uppers’ for tariff classification purposes. You have provided a surface area percentage measurement for style 3881X indicating that textile material predominates by external surface area. In this regard the upper is not classified in subheading 6406.10.6500. 4. The applicable subheading for samples 825X, 826X, 3880X and 3881X will be 6406.10.40 HTSUS, which provides for parts of footwear: uppers and parts thereof: formed uppers: of textile materials: other: valued over $12/pair. The general rate of duty will be 7.5 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

The submitted samples are not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

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

A copy of the 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, Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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