HQ 082075: Classification of footwear

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 082075

                                  December 1, 1988

          CLA-2 CO:R:C:G  082075 DSN

          CATEGORY:  Classification

          TARIFF NO.:  6406.10.0500; 6406.10.65

          John B. Pellegrini, Esquire
          Ross & Hardies
          575 Fifth Avenue
          New York, New York 10017-2470

          Re:  Classification of footwear

          Dear Mr. Pellegrini:

                Your inquiry of December 11, 1987, on behalf of the
          Timberland Company, addressed to our New York office concerning
          classification of certain types of footwear under the Harmonized
          Tariff Schedule of the United States Annotated (HTSUSA), was
          referred to this office for a direct reply.  Two samples were
          originally submitted and three additional samples were later
          furnished.  All samples were manufactured in the Dominican
          Republic.

          FACTS:

                The first sample, which we have labelled number 1, is a
          three eyelet oxford with padded collar and tongue.  The oxford is
          fully shaped and has been back-part lasted as evidenced by the
          shaped heel in the rear of the shoe.  The upper is lined with
          leather and has a single oblong shaped opening measuring
          approximately one and one half inches long by three quarters of
          an inch wide.  The hole is cut approximately one inch forward
          from the back of the heel.

                The second sample, which we have labelled number 2, is a
          penny loafer which is considered fully shaped by way of a visible
          line inside the rear area.  This line is evidently the result of
          the upper being placed on a last or some other device, which
          gives the leather a permanent turn inward to form the flat
          surface.  The plastic inside counter at the extreme rear of the
          loafer has not been shaped, the leather tab which covers it has
          been turned inward to form a horizontal ridge.  The loafer has an
          oblong shaped hole measuring approximately three and one half
















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          inches long, by one half to a quarter inch wide.  The hole runs
          from the back of the heel to the mid-arch.  In addition, there is
          a circular hole about one inch in front of the other hole
          described above, which measures approximately three quarters of
          inch in diameter.

                The additional samples are labelled A, B and C.  Sample A
          is a three eyelet moccasin type upper which is closed at the
          bottom.  The sample appears not to have been back-part lasted.
          The sample has a "kicker" which forms the back part of the upper.
          According to your submissions, the vamp portion was hand sewn on
          a last and then removed.  The upper was not dried on a last.  The
          uppers will have to be soaked, relasted and dried on a last after
          importation into the United States in order to give the moccasin
          its final shape and form.

                Sample B is a loafer type upper with a tongue.  The loafer
          has an oblong shaped hole measuring approximately four and three
          quarter inches long, by one and one half inches wide.  This hole
          runs from the back of the heel to the mid-arch.  The leather
          around the heel area falls into a straight position, and has no
          "tuck".  Like the second sample, there is a circular hole which
          measures approximately three quarters of an inch in diameter.
          According to your submissions, the upper was dried on a last but
          was not back part lasted.  The back-part lasting operation would
          take place after importation into the United States.

                Sample C is identical in design to sample "B" except that
          the vamp was not dried on a last.  Acccording to your submission,
          the upper would have to be soaked, re-lasted and dried after
          importation into the United States in order to obtain its final
          shape.

          ISSUE:

                Whether the samples at issue are classified as formed
          uppers or other uppers under the HTSUSA.

          LAW AND ANALYSIS:

                Formed uppers and other uppers are within Heading 6406,
          HTSUSA, which provides for parts of footwear, removable insoles,
          heel cushions and similar articles, gaiters, leggings and similar
          articles, and parts, thereof.  Subheading 6406.10.05, HTSUSA,
          provides for uppers and parts thereof, formed uppers, of leather.
          Subheading 6406.10.65, HTSUSA, provides for uppers and parts
          thereof, other.

                The term formed upper is not clearly defined under the
          HTSUSA, nor by the Explanatory Notes which constitute the












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          official interpretation of the tariff at the international level.
          Additional United States Note 4 to Chapter 64 provides an
          indication of the intention of the drafters of the provision.
          Note 4 to Chapter 64, HTSUSA, states that 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 state in your original inquiry, that samples 1 and 2
          cannot be considered as having closed bottoms because they have
          holes cut out.  We construe the phrase closed bottoms as uppers
          which are substantially closed.  It is our view that
          substantially closed means that more of the lower surface that is
          intended to cover the bottom of the foot is present, than is
          absent.  Samples 1 and 2 are substantially closed because more of
          the lower surface is present than absent.  Moreover, samples 1
          and 2 have been shaped all around their perimeters by more than
          simply closing at the bottom.  Sample 1 is completely back-part
          lasted.  The narrow one inch wide heel tab is the only part of
          the back of sample 2 which is partially lasted, the balance of
          the back part being fully lasted.  We note that the partial
          lasting at the heel of sample 2 is so minimal that it is still
          considered fully formed.

                Moreover, we distinguish samples 1 and 2 from the uppers
          described in Headquarters Ruling Letter 080786 of October 15,
          1987.  That ruling dealt with parts for moccasin-type loafers.
          The uppers had not been back-part lasted, whereas samples 1 and 2
          have been back-part lasted and are considered fully formed.

                The analysis for samples A, B, and C is somewhat different.
          None of these samples have been back-part lasted and all require
          further processing to attain their final shape.  With respect to
          sample A, the limited amount of shaping as a result of the
          stitching precludes it from being classified as a formed upper.
          With respect to samples B and C, the degree of shaping is
          minimal.  Since neither of these samples has been back-part
          lasted and they need to be soaked, re-lasted and dried after
          importation in order to obtain their final shape, they are
          precluded from classification as a formed upper.

          HOLDING:

                In view of the foregoing, samples 1 and 2 are classified
          under subheading 6406.10.0500, HTSUSA, as parts of footwear,
          removable insoles, heel cushions and similar articles, uppers and
          parts thereof, formed uppers, of leather or composition leather,
          for men, youths and boys.  The merchandise is dutiable at the
          rate of 8.5 percent ad valorem.

                Samples A, B and C are classified under subheading












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          6406.10.65, HTSUSA, which provides for parts of footwear, uppers
          and parts thereof, other of leather.  The merchandise is dutiable
          at the rate of 3.7 percent ad valorem.  This classification
          decision is under the HTSUSA, effective January 1, 1989, subject
          to changes in the law before the effective date.


                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division