CLA-2-64:OT:RR:NC:N4:447
Ms. Rebecca Montgomery
New Balance Athletic Shoe, Inc.
Distribution Center
10 International Way
Lawrence, MA 01843-1064
RE: The tariff classification of footwear parts from China
Dear Ms. Montgomery:
In your letters dated November 12, 2010 and January 11, 2011 you requested a classification ruling.
The submitted half-pair sample which you identify as style W690BL1, is a below-the-ankle lace-up “athletic” upper with a closed bottom, except for a 3/8 of an inch diameter hole cut from it. There is no “sock” liner sewn into the inside of the upper and there is no outer sole. You provided a “Report of Laboratory Analysis” from Customs Laboratory Services, LLC, which denotes an upper component material breakdown by percentage of 54.1% rubber/plastics and 45.9% textile materials. You state that although the test was conducted on a complete finished shoe of a different color of the same style, the esau test was performed on the same upper materials that are the subject of the instant ruling request. You contend that the upper is not formed because of the hole in the otherwise closed bottom and suggest classification under subheading 6406.10.6000, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for other than formed uppers of other than textile material. We disagree with this suggested classification.
T.D. 93-88 “Footwear Definitions,” dated October 25, 1993 defines “formed uppers” in pertinent part as not including: 1. “Mocassin uppers with a significant sized hole (the size of a nickel or larger) in the bottom layer” 2. “Any upper which is completely unlasted, i.e. no part of it has been bent (lasted) inward to the horizontal.”
Customs has consistently held that for an upper to be “formed,” it must be shaped by lasting, molding or otherwise but not by simply closing at the bottom. Additionally, any hole in an otherwise closed bottom must be smaller than the size of a nickel. The submitted sample meets both of these criteria. Therefore, it is the opinion of this office that the submitted sample be classified as a formed upper.
The applicable subheading for style W690BL1 will be 6406.10.5000, HTSUS, which provides for parts of footwear; uppers and parts thereof, other than stiffeners: formed uppers; in which the upper’s external surface is predominately other than either leather or composition leather or textile materials; other. The rate of duty is 26.2% 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/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of this ruling letter 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 this ruling, contact National Import Specialist, Stacey Kalkines at (646) 733-3042. Sincerely,
Robert Swierupski
Director
National Commodity Specialist Division