HQ 954790: Formed uppers; Footwear; Additional U.S. Note 4 to Chapter 64; HQ 085291

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 954790 

                       September 28, 1993

CLA-2  CO:R:C:M  954790 DFC 

CATEGORY:  Classification 

TARIFF NO.:  6406.10.05;  6406.10.10 

Paul Leitner 
Continental Agency
135 Brea Canyon Rd 
City of Industry, CA 91789

RE:  Formed uppers;  Footwear;  Additional U.S. Note 4 to Chapter
     64;  HQ 085291 

Dear Mr. Leitner: 

     This is in reply to your letter dated July 1, 1993, to the
Area Director of Customs in New York, on behalf of Pioneer Shoe
Corp, concerning the tariff classification under the Harmonized
Tariff Schedule of the United States (HTSUS), of two footwear
uppers.  Your letter, together with the samples submitted, have
been referred to this office for a response.     

FACTS:  

     You describe the uppers as follows: 

          Footwear upper style 44334 is an unformed upper of
          leather, assembled by sewing the component pieces
          together.  The upper is not shaped by means of a last. 
          Upon importation the importer applies the soles and
          finishes the footwear into its final form.  

          Footwear upper style 44659 is an unformed upper of
          leather, assembled by sewing the component pieces
          together.  The upper is not shaped by means of a last. 
          Upon importation the importer applies the sole and
          finishes the footwear into the final product.  

ISSUE:

     Are the uppers "unformed" for tariff purposes?





                               -2-

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.  

     If the uppers are "formed," classification under subheading
6406.10.05 or 6406.10.10, HTSUS, would be appropriate depending
on gender and size.  Subheading 6406.10.05, HTSUS, provides for
parts of footwear, uppers and parts thereof, other than
stiffeners, formed uppers, of leather or composition leather, for
men, youths and boys.  The applicable rate of duty for this
provision is 8.5% ad valorem.  Subheading 6406.10.10, HTSUS,
provides for parts of footwear, uppers and parts thereof, other
than stiffeners, formed uppers, of leather or composition
leather, for other persons.  The applicable rate of duty for this
provision is 10% ad valorem.  

     If the uppers are "unformed," classification would be under
subheading 6406.10.65, HTSUS, which provides for parts of
footwear, uppers and parts thereof, other than stiffeners, other,
other, of leather.  The applicable rate of duty for this
provision is 3.7% ad valorem.   

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

     . . . Provisions 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. 

     In general "formed uppers" includes all items which have a
layer of material between most of the foot and the ground, and
which, after lacing or buckling, if needed, will stay on the foot
if worn in the condition as imported and which are shaped to fit
the human foot. 











                              -3- 

     "Formed uppers" do not include:

     1.   Moccasin uppers with a significant sized hole (the size
          of a nickel or larger) in the bottom layer whether or
          not the upper is fully formed (lasted) unless the piece
          which will cover that opening is in the same shipment. 
          See HQ 085291 dated March 1, 1990.
      
     2.   Any upper which is completely unlasted, (i.e., no part
          of it has been bent (lasted) inward to the horizontal. 
          
     It is our position that the sample uppers are "formed." 
Each has a complete textile "underfoot."  The "underfoot" of
sample 44659 has no holes or openings and sample 44334's
"underfoot" has only several small nail holes in it so both are
clearly "closed."  In each upper, there is a hard plastic inside
back counter which must have been shaped in a process involving
substantial heat.  It would otherwise be impossible to get a flat
piece of relatively thick, rigid plastic to bend and curve so
much and to retain its shape when the (small) forces generated by
the stitching together of the other pieces of the upper are
released by cutting the seams.  This shaping of the plastic is
clearly more than was necessary for simply closing at the bottom.

     The shaping of the plastic heel counter appears to have been
accomplished by using a back part lasting machine.  We note the
thin layer of molded black plastic and the five cylindrical
depressions in the heel area of the "underfoot" of sample 44334
which are consistent with the heat and pressure levels which are
needed for such a device.


HOLDING: 

     Both of the sample uppers are considered "formed" for tariff
purposes. 

     Both of the sample uppers are classifiable under subheading
6406.10.05 or 6406.10.10, HTSUS, depending on gender and size.   


                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division 


 

6cc AD NY Seaport
1cc John Durant 
1cc J. Sheridan NY Seaport