CLA-2 CO:R:C:M 088483 DFC

Ms. Alison Leavitt
Chase Leavitt CHB, Inc.
10 Dana Street
Portland ME 04112

RE: Uppers, formed, unassembled

Dear Ms. Leavitt:

Your letter dated November 21, 1990, addressed to our New York office has been referred to us for a direct reply to you as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of three "unformed" uppers, two half insoles, a sock lining and a heel pad produced in Thailand. Samples were submitted for examination.

FACTS:

The sample labelled "Original" is a leather upper which partially covers the bottom of the foot but which has not been shaped by lasting. In addition, it has a hole at the bottom of approximately 3 inches in length, measured from the back of the heel. There are metal eyelets along the sides of the throat. Stapled to the upper is a half insole which is composed of a leather piece and a foam cushion. The insole runs from the heel to the mid foot. On the surface of the insole are the words, "MADE IN U.S.A.."

The sample labelled "BUC" is a leather upper which covers the top of the foot but which is completely open and unformed at the bottom. There are eyelets along the sides of the throat. Stapled to the upper is a half insole which is composed of a leather piece and a foam cushion. The insole runs from the heel to the mid foot.

The sample labelled "Chrissie" is a leather upper which covers the top of the foot but which is completely open and unformed at the bottom. There are eyelets along the sides of the throat. Stapled to the upper is a man-made textile sock lining which will cover the bottom of the foot in the completed shoe. There is also an elliptic shaped piece of leather of the same type as the upper, approximately 2 inches long, with the word "Bass" inside an oval boarder printed in gold. It appears that this additional piece of leather is a heel pad.

You inform us that the uppers will be imported separately from the attached insoles or sock lining and heel pad at times, and at other times the uppers will be imported with the insoles or sock lining and heel pad. In New York Ruling Letter 858480 dated December 28, 1990, you were advised as to the classification and marking requirements for the described samples when they are imported separately except for the sample insole labelled "ORIGINAL," which is marked "Made in the U.S.A.."

This ruling will only address the classification issues involved. The country of origin marking question will be the subject of a separate ruling which will be issued to you in the near future.

ISSUE:

Do the uppers imported with insoles or sock lining and heel pad constitute unassembled/unfinished "formed uppers" for tariff purposes?

Should the unformed uppers and the insoles, sock lining and heel pad be classified separately although imported together?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA 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.

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ISSUE NO 1

GRI 2(a), HTSUSA, which is relevant here reads as follows:

2. (a) 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. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

The 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.

It should be noted that Customs has taken the position that an insole/sock lining and an upper which were imported together are considered to be constructively assembled pursuant to GRI 2 (a), supra, for purposes of creating a "formed upper" under the HTSUSA. However, it should also be noted that in order to be considered a "formed upper" that upper must be both front part and back part lasted. See Headquarters Ruling Letter 088035 dated February 1, 1991. Not one of the three uppers involved is both front part and back part lasted. Consequently, even when the uppers (in their present condition) are imported together with their respective half insoles, or sock lining and heel pad, they will not constitute "formed uppers."

ISSUE NO. 2

GRI 2(b), HTSUSA, reads as follows:

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

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GRI 3, HTSUSA, provides in pertinent part as follows:

3. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods, consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which give them their essential character, insofar as this criterion is applicable.

GRI 3(b), HTSUSA, is relevant here because GRI 3(a), HTSUSA, cannot be used in determining classification. The Explanatory Notes (EN) for GRI 3, HTSUSA, which are the official interpretation of the Harmonized System at the international level state that the term "goods put up in sets for retail sale" means goods that:

(a) consist of at least two different articles prima facie classifiable in different headings (or, by GRI 6 subheadings);

(b) consist of products or articles put together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

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The components do not qualify as "goods put up in sets for retail sale" because the stated use of the articles is not to offer them for retail sale. Thus, the further question to be resolved is whether the components when imported together create a composite good.

EN IX to GRI 3(b), HTSUSA, reads in pertinent part as follows:

(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In this instance, none of the parts stapled to their respective uppers will form a whole when combined with those uppers. We know of no way to refer to them than as, for example, an upper plus a matching half sole. Such a description does not sound like the name of a single "whole" to us.

In view of the foregoing it is our opinion that these components when imported together will not be "composite goods" within the purview of GRI 3(b), HTSUSA, and must be classified as if each component were imported separately.

HOLDING:

The uppers are classifiable under subheading 6406.10.65, HTSUSA, as parts of footwear, uppers and parts thereof, other than stiffeners, other, of leather. The applicable rate of duty for this provision is 3.7 percent ad valorem.

The leather half insoles for styles "Original" and "BUC" and the heel pad for style "Chrissie" are classifiable under subheading 6406.99.60, HTSUSA, as parts of footwear, removable insoles, heel cushions and similar articles, other, other, of leather. The applicable rate of duty for this provision is 5 percent ad valorem.

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Merchandise classifiable under subheadings 6406.10.65 and 6406.99.60, HTSUSA, which are products of Thailand are entitled to duty free treatment under the Generalized System of Preferences upon compliance with all applicable regulations.

The sock lining for style "Chrissie" is classifiable under subheading 6406.99.1540, HTSUSA, as parts of footwear, other other, of other materials, of textile materials, of man- made fibers, other, with duty at the rate of 5.1 percent ad valorem. The textile category is 659.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc AD NY Seaport
1cc Dept of Commerce
1cc James Sheridan NY Seaport
1cc Dist Dir Portland Maine
1cc Dist Dir Boston
1cc Tony Cataldo Boston
1cc Legal Reference
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