CLA-2 CO:R:C:M 954790 DFC

Paul Leitner
Continental Agency
135 Brea Canyon Rd
City of Industry, CA 91789

RE: Formed uppers; Footwear; Additional U.S. Note 4 to Chapter 64; HQ 085291

Dear Mr. Leitner:

This is in reply to your letter dated July 1, 1993, to the Area Director of Customs in New York, on behalf of Pioneer Shoe Corp, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of two footwear uppers. Your letter, together with the samples submitted, have been referred to this office for a response.

FACTS:

You describe the uppers as follows:

Footwear upper style 44334 is an unformed upper of leather, assembled by sewing the component pieces together. The upper is not shaped by means of a last. Upon importation the importer applies the soles and finishes the footwear into its final form.

Footwear upper style 44659 is an unformed upper of leather, assembled by sewing the component pieces together. The upper is not shaped by means of a last. Upon importation the importer applies the sole and finishes the footwear into the final product.

ISSUE:

Are the uppers "unformed" for tariff purposes?

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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.

If the uppers are "formed," classification under subheading 6406.10.05 or 6406.10.10, HTSUS, would be appropriate depending on gender and size. Subheading 6406.10.05, HTSUS, provides for parts of footwear, uppers and parts thereof, other than stiffeners, formed uppers, of leather or composition leather, for men, youths and boys. The applicable rate of duty for this provision is 8.5% ad valorem. Subheading 6406.10.10, HTSUS, provides for parts of footwear, uppers and parts thereof, other than stiffeners, formed uppers, of leather or composition leather, for other persons. The applicable rate of duty for this provision is 10% ad valorem.

If the uppers are "unformed," classification would be under subheading 6406.10.65, HTSUS, which provides for parts of footwear, uppers and parts thereof, other than stiffeners, other, other, of leather. The applicable rate of duty for this provision is 3.7% ad valorem.

Additional U.S. Note 4 to Chapter 64, HTSUS, reads in pertinent part, as follows:

. . . Provisions 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.

In general "formed uppers" includes 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.

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"Formed uppers" do not include:

1. Moccasin uppers with a significant sized hole (the size of a nickel or larger) in the bottom layer whether or not the upper is fully formed (lasted) unless the piece which will cover that opening is in the same shipment. See HQ 085291 dated March 1, 1990. 2. Any upper which is completely unlasted, (i.e., no part of it has been bent (lasted) inward to the horizontal. It is our position that the sample uppers are "formed." Each has a complete textile "underfoot." The "underfoot" of sample 44659 has no holes or openings and sample 44334's "underfoot" has only several small nail holes in it so both are clearly "closed." In each upper, there is a hard plastic inside back counter which must have been shaped in a process involving substantial heat. It would otherwise be impossible to get a flat piece of relatively thick, rigid plastic to bend and curve so much and to retain its shape when the (small) forces generated by the stitching together of the other pieces of the upper are released by cutting the seams. This shaping of the plastic is clearly more than was necessary for simply closing at the bottom.

The shaping of the plastic heel counter appears to have been accomplished by using a back part lasting machine. We note the thin layer of molded black plastic and the five cylindrical depressions in the heel area of the "underfoot" of sample 44334 which are consistent with the heat and pressure levels which are needed for such a device.

HOLDING:

Both of the sample uppers are considered "formed" for tariff purposes.

Both of the sample uppers are classifiable under subheading 6406.10.05 or 6406.10.10, HTSUS, depending on gender and size.


Sincerely,

John Durant, Director
Commercial Rulings Division

6cc AD NY Seaport
1cc John Durant
1cc J. Sheridan NY Seaport