CLA-2 OT:RR:CTF:TCM H165759 CkG
Ms. Donna Bade
Sandler, Travis & Rosenberg, P.A.
225 W. Washington St.
Suite 1550
Chicago, IL 60606
RE: Revocation of NY N110715; the tariff classification of a footwear upper from China.
Dear Ms. Bade:
This is in reference to New York Ruling Letter (NY) N110715, issued to you on June 30, 2010, on behalf of Red Wing Shoe Company. In NY N110715 CBP classified a boot upper, style #43858, in subheading 6406.10.90, HTSUS. We have reconsidered this decision, and find that it was incorrect.
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, notice proposing to revoke NY N110715 was published on April 29, 2015, in Volume 49, Number 17, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
At issue is a textile boot upper, style #43858. A sample was forwarded to this office for our review. The upper consists of predominately man-made fiber textile materials in a camouflage pattern. One layer of material is sewn to the bottom of the inner lining. Another, outer layer is sewn to the bottom of the upper. There are four holes, each approximately 1 1/8-inch in diameter cut out of the outer (bottom) layer of the upper. The inner layer of the upper is complete. Two of these holes are partially covered by adhesive tape. The other two holes remain open.
ISSUE:
Whether the instant boot uppers are classified as formed uppers in subheading 6406.10.40, HTSUS, or as other footwear uppers in subheading 6406.10.90, HTSUS.
LAW AND ANALYSIS:
The HTSUS provisions under consideration are as follows:
6406: 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:
6406.10: Uppers and parts thereof, other than stiffeners:
Formed uppers:
Of textile materials:
Other:
6406.10.40: Valued over $12/pair. . . .
Other:
Other:
Other:
6406.10.90: Other.. .
* * * *
Additional U.S. Note 4 to Chapter 64 provides as follows:
4. 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.
* * * *
You argue that style # 43858 is classified in subheading 6406.10.90, HTSUS, and that the same style was also classified in subheading 6406.10.90, in NY L88785, dated February 15, 2006. However, we note that while the same merchandise was at issue in both rulings, the condition of the merchandise at time of importation was different. At issue in NY L88785 was the same boot upper, but with “an approximately 1-inch diameter hole that has been cut out of the sock bottom in the heel area of an otherwise closed underfoot.” In that case, the hole entirely pierced the bottom of the shoe and the sock liner. Similarly, in previous cases wherein CBP determined that footwear uppers were unformed because of substantial openings cut into the bottom of the upper, the holes punched completely through the material of the upper. See e.g., HQ 085573, dated December 28, 1989, HQ 085291, dated March 1, 1990, and HQ 087458, dated September 19, 1990.
In contrast, the perforations cut into the boot uppers at issue do not pierce the inner liner of the upper, and thus do not constitute “substantial openings” pursuant to the above-cited rulings. A closer analogue to the instant merchandise was classified as a formed upper of subheading 6406, HTSUS, in HQ W968401, dated February 6, 2007, and HQ H007658, dated January 10, 2008 (affirming HQ W968401). HQ W968401 described the merchandise therein as follows: “The sample upper has four circular perforations punched through its sock bottom…The perforations are not complete holes because the complete circumference of each circle has not been cut. Rather, these perforations form circular flaps that remain attached to the stroble outsole…None of the perforations or holes extend through the inner GORE-TEX® liners.” In HQ W968401, CBP concluded that “It remains our position that if the bottoms of uppers have substantial openings cut out of them, they are not closed and the uppers are not formed. However, the certain boot uppers at issue do not have a hole, or holes, cut out of them. Instead, the uppers have four perforations to which circular flaps remain attached, and the flaps are possibly covered by pieces of synthetic material (duct tape or similar) that hold the flaps securely in the perforated circles. As a result, we find that the certain uppers at issue do not have “substantial openings” and must be regarded as “formed uppers” provided for by subheading 6406.10, HTSUS.”
Pursuant to HQ W968401 and HQ H007658, we find that the holes in the instant uppers are not substantial openings. The instant boot uppers are therefore formed uppers under subheading 6406.10, specifically 6406.10.40, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the instant boot uppers are classified in subheading 6406.10.40, HTSUS, 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 textile materials: Other: Valued over $12/pair.” The 2015 column one, general rate of duty is 7.5%.
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 online at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N110715, dated June 30, 2010 is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division