CLA-2 CO:R:C:M 955606 DFC

John B. Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Formed uppers; Parts of footwear; Underfoot; HRL's 089764, 082237, 954790, 950418 Dear Mr. Pellegrini:

In a letter dated December 28, 1993, on behalf of The Timberland Company and its wholly-owned subsidiary, The Outdoor Footwear Company, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain footwear uppers produced in the Dominican Republic. You have also submitted a supplemental submission on this matter dated April 20, 1994. A sample was submitted for examination.

FACTS:

The sample upper, marked as Exhibit "A," consists of a leather plug, a vamp and quarters. The upper has a closed bottom and is neither front-part nor fully back-part lasted. You state that "the closing has been effected by stitching an 'underfoot' made of a non-woven polyester material to the bottom of the upper."

The subject upper will be used to make footwear with simultaneously-molded bottoms or pre-formed cup soles.

ISSUE:

Is the sample upper considered a "formed upper" for tariff purposes?

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.

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

. . . Provisions for 'formed uppers' covers uppers, with closed bottoms, which have been shaped by lasting, molding or otherwise but not by simply closing at the bottom.

You claim that the merchandise is classifiable either as uppers, not formed, of leather, under subheading 6406.10.65, HTSUS, or as other parts of footwear, of leather, under subheading 6406.99.60, HTSUS.

The rationale for your position is set forth as follows:

The upper type represented by the sample is not lasted. Its shape is obtained by sewing different pieces of an upper together. The fact that the "underfoot" closes the bottom does not create a formed upper because any shaping of the upper has been created by stitching only. The upper is neither front-part nor back-part lasted. As such, it is not a formed upper. See, e.g., HRL 089764 dated August 15, 1991, and HRL 082237 dated May 29, 1990.

The upper alone, i.e., without the underfoot, is not formed because under Additional U.S. Note 4, HTSUS, formed uppers must have closed bottoms. The sample is a combination of an upper and a separate component known as an underfoot. Since the underfoot is not part of the upper, the upper is not closed. It is only the combination upper/underfoot which can be described as closed. Thus, under the definition of "formed" uppers, the sample is not a formed upper.

This point is reinforced by reference to the language of heading 6406, HTSUS, which begins: "Parts of footwear (including uppers whether or not attached to soles other than outer soles); . . . ." The provision for uppers, formed and other, subheading 6406.10, HTSUS, covers uppers and parts thereof, other than stiffeners. It is noteworthy that subheading 6406.10, HTSUS, does not repeat the parenthetical language of the heading, i.e., "including uppers whether or not attached to soles other than outer soles." This difference in language establishes that subheading 6406.10, HTSUS, covers uppers and parts thereof but not combinations of uppers and soles, other than outer soles, described in heading 6406, HTSUS. Uppers attached to soles, other than outer soles, are classified as parts of footwear. This is clear. It is equally clear that such combinations are not classified in subheading 6406.10, HTSUS. This different treatment of uppers and upper combinations is required by the difference in language described above.

A combination upper/sole is not classified as an upper of any sort. Such a combination is "more than" an upper and as such, it is properly classified as other parts of footwear. The language of heading 6406, HTSUS, makes it clear that uppers attached to soles, other than outer soles, are, in the words of heading 6406, HTSUS, something other than uppers. On the other hand, subheading 6406.10, HTSUS, refers only to uppers. By its very language, subheading 6406.10, HTSUS, does not include uppers in combination with other footwear parts.

The subject upper/sole combination is not a "formed" upper. As you have pointed out, the heel counter has been formed. The shape of the heel counter is achieved in part by a molding process. However, the upper/sole combination has not been formed. Additional U.S. Note 4 describes an upper which has been "formed" by lasting, molding or otherwise. The Note is silent as to individual upper components. The molding of the heel counter does contribute to the shape of the heel portion of the upper. However, the upper itself has not been shaped by lasting, molding or otherwise.

In HRL 954790 dated September 28, 1993, Customs stated that "formed uppers do not include: . . . 2. Any upper which is completely unlasted (i.e., no part of which has been bent (lasted) inward to the horizontal." When this definition is applied to the sample, it is not classified as "formed" uppers. No part of the upper/sole combination has been bent (lasted) inward to the horizontal. No portion of the leather has been bent inward. No portion of the textile underfoot has any shape at all. Accordingly, under HRL 954790, the subject combination has not been "lasted" and, by definition, may not be classified as a "formed" upper. You state that the subject upper has not been front-part or fully back part-lasted. However, lasting is not the only method by which an upper may be shaped. It is our observation that the shaping of the subject upper could not have resulted from "simply closing at the bottom" (i.e., shaping of the upper by stitching only). We believe that the inside back counter [which we cut out of the shoe] made of some sort of semi-rigid material, which appears to be plastic, could have gotten its curved shape only by some kind of molding/lasting process. Specifically, the upper is not completely unlasted. The plastic piece is already beginning to curve to the horizontal. See, Headquarters Ruling Letter (HRL) 950418 dated December 31, 1991.

With respect to HRL 089764 which you cited in support of your position, we believe that the instant merchandise is easily distinguishable in that the "non-openness" of the bottom there was considerably more problematic since the heel pad would have to be matched to the upper and then assembled, necessarily in conjunction with a missing insole piece, to produce a "closed" bottom. Exhibit A already has a "closed" bottom.

You would treat the merchandise as two separate entities, viz, as an upper and as a combination upper/underfoot. Under your theory the upper could not be considered as having a closed bottom since the underfoot is not a part of the upper. Only the combination upper/underfoot could be described as closed. Consequently, following the definition of "formed uppers," the merchandise is not a formed upper. We disagree. Certainly, the underfoot can be considered as part of the upper because in this instance it is the equivalent of an insole. Further, as part of the upper, the underfoot [insole} can be considered as closing the upper [closed bottom].

We do not agree with your contention that subheading 6406.10, HTSUS, covers "uppers and parts thereof but not combinations of uppers and soles, other than outer soles," described in heading 6406, HTSUS. Your interpretation of heading 6406, HTSUS, is much too narrow in scope. Our interpretation of the parenthetical phrase is that it is a two-step definition of uppers covered by heading 6406, HTSUS. First, it includes uppers attached to soles other than outer soles, and second, it includes uppers that are not attached to soles. Under this interpretation there is no need to repeat the parenthetical language of heading 6406, HTSUS, in subheading 6406.10, HTSUS, because the term "uppers" is defined in heading 6406, HTSUS.

Further, given the definition of "formed uppers" in Additional U.S. Note 4 to chapter 64, HTSUS, your interpretation of the scope of subheading 6406.10, HTSUS, would lead to the emasculation of the provisions for "formed uppers" at the eight and 10 digit levels. HOLDING:

The sample upper is considered a "formed" upper for tariff purposes. The sample upper is dutiable at the rate of 8.5% ad valorem under subheading 6406.10.05, HTSUS, if for men, youths and boys, or at the rate of 10% ad valorem under subheading 6406.10.10, if for other persons.

Sincerely,

John Durant, Director