HQ 086588: Two eyelet moccasin-type leather uppers

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 086588

                         June 28, 1990



CLA-2 CO:R:C:G  086588   ALS

CATEGORY: Classification

TARIFF NO.:  6406.10.6500

John B. Pelligrini
Attorney at Law
Ross and Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE:  Two eyelet moccasin-type leather uppers

Dear Mr. Pelligrini:

     This is in response to your letter of February 26, 1990, on
behalf of The Timberland Company, concerning the classification
of certain types of footwear under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).  The footwear will be
produced in the Dominican Republic, Mexico or other locations.
Two samples were submitted for our examination.  Although your
letter suggests that the subject uppers are properly classified
in subheading 6506.10.65, you telephonically advised us that the
second digit of the proposed subheading is incorrect and that you
are proposing that the uppers should be properly classified in
subheading 6406.10.65.

FACTS:

     The samples submitted consist of a pair of two eyelet
moccasin-type leather uppers marked 393360/75077.  They are the
right and left of a pair of uppers, man's size 8M.  They are
front-part and back-part lasted, as imported.  These uppers are
noted to have a hole in the bottom measuring 4 1/4" long by 3/4"
wide.  Actual measurement of the hole in the samples submitted
shows the stated size of the hole to be a nominal measurement.
While the length of the hole in both samples is approximately 4
1/8" long, the width of the hole in each samples differs.  In one
sample the hole, at the mid-point of the upper, is 3/4" which
tapers down to 1/2" in the heel area.  The width of the hole in
the other sample is uniformly 1/2".  (We presume that in course
of production a template will be used to cut these holes and that
they will uniformly be a minimum of 4 1/4" long by 3/4" wide when
imported).

                              - 2 -

ISSUE:

     Are these sample uppers considered "formed uppers" for
tariff purposes.

LAW AND ANALYSIS:

     In applying the HTSUSA, the Customs Service must follow the
terms of the statute.  Classification of goods under the HTSUSA
is governed by the General Rules of Interpretation (GRI's).  GRI
1 provides the "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, HTSUSA, sets forth the
criteria for determining whether an upper is considered a formed
upper for tariff purposes.  That note reads in pertinent part as
follows:

     ...[p]rovisions 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.

Since, as noted in the ruling request, the sample uppers are
front-part and back-part lasted, they meet that part of
Additional U.S. Note 4, Supra, regarding uppers which have been
shaped by lasting, molding or otherwise, they are formed uppers.
However, it is necessary to determine whether they meet the
remaining part of Additional U.S. Note 4, Supra, which provides
for formed uppers with closed bottoms.

     In Headquarters Ruling Letter (HRL) 082075, dated December
1, 1988, this office stated that "[w]e construe the phrase closed
bottoms as uppers which are substantially closed. (Emphasis
added).  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."  In HRL 082573, dated December
28, 1989, this office modified this position stating that we "are
now of the opinion that uppers which have substantial openings
cut out of the bottoms, as is the case here, are not closed
within the meaning of Additional U.S. Note 4 to Chapter 64,
Supra.

                              - 3 -

     In Headquarters Ruling Letter (HRL) 085291, dated March 1,
1990, this office noted that the upper samples therein were
front-part and back-part lasted.  This office also noted inasmuch
as certain of the samples therein had substantial openings in
their bottom, they cannot be considered uppers for tariff
purposes.

     Since the sample uppers in this request likewise have a
substantial opening in their bottoms, they cannot be considered
formed uppers for tariff purposes.

HOLDING:

     The sample uppers are classifiable under subheading
6406.10.6500, HTSUSA, as parts of footwear, uppers and parts
thereof, other, of leather.  The applicable rate of duty is at
the general rate of 3.7 percent ad valorem and may be entitled to
free entry under the Generalized System of Preference or the
Caribbean Basic Economic Recovery Act, if otherwise qualified.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division