HQ 966540

September 26, 2003

CLA-2:RR:CR:TE JFS

CATEGORY: Classification

TARIFF NO.: 6406.10.6500

Mr. Russel Binning

Pioneer Shoe Corp.

10788 Monte Vista Ave.

Ontario, CA 91763

Re: Revocation of HQ 958966; Not Formed Uppers

Dear Mr. Binning:

This is to notify you that the Bureau of Customs and Border Protection
(CBP) has reconsidered Headquarters Ruling Letter (HQ) 958966, issued to
you March 26, 1997, wherein CBP classified a leather shoe upper for a
work boot in subheading 6406.10.1000, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). For the reasons that follow, this
ruling revokes HQ 958966.

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 (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L. 103-82,
107 Stat. 2057, 2186), notice of the proposed revocation of HQ 958966,
was published on July 16, 2003, in the *[Customs Bulletin]{.smallcaps},
Volume 37, Number 29*. As explained in the notice, the period within
which to submit comments on this proposal ended on August 18, 2003. No
comments were received in response to this notice.

FACTS:

In HQ 958966, the shoe upper under consideration was described as
follows:

> \[T\]he leather upper is fully cement lasted to a cardboard insole
> with a 1/4 inch thick full plastic-rubber midsole and a ½ inch thick
> partial heel. The PVC mid-sole filler has a 1-¼ inch in diameter round
> hole cut in the bottom. You indicate that once these uppers are
> imported into the United States, additional materials and processing
> are required to close the bottom. Specifically, a twelve step
> injection carousel molds a thermal plastic outsole to the upper. You
> further indicate that this process requires a four man team of
> specially trained technicians and accounts for about 65% of the cost
> of the finished goods.

The upper was classified in subheading 6406.10.1000, HTSUSA, 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 leather or composition leather: For other persons."

ISSUE:

Whether an upper with a 1-¼ inch hole cut out of the bottom has a
"closed bottom."

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation (GRI's). GRI 1 provides that the classification
of goods shall be determined according to the terms of the headings of
the tariff schedule and any relative Section or Chapter Notes. In the
event that the goods cannot be classified solely on the basis of GRI 1,
and if the headings and legal notes do not otherwise require, the
remaining GRI may then be applied.

Additional U.S. Note 4 to chapter 64, HTSUS, provides as follows:

> Provisions of subheading 6406.10 for \"[formed uppers]{.underline}\"
> cover uppers, with closed bottoms, which have been shaped by lasting,
> molding or otherwise but not by simply closing at the bottom.

The upper under consideration in HQ 958966 was fully shaped by cement
lasting. Thus, the only issue was whether, by virtue of the 1-¼ inch
hole cut out of the mid-sole, the upper was considered to have a bottom
that was not closed.

CBP has generally strictly interpreted Additional U.S. Note 4 and held
that if the bottoms of uppers have a hole cut out of them, they are not
closed and the uppers are not formed. Most recently, in HQ 561499, CBP
ruled that sandals with a plastic footbed in which a nickel-sized hole
cut out of the footbed and mid-sole, which would be plugged after
importation, did not have closed bottoms. CBP relied on HQ 087458, dated
September 19, 1990; HQ 085573, dated December 28, 1989; and HQ 085291,
dated March 1, 1990, wherein CBP ruled that because the bottoms had
holes, the uppers did not have "closed bottoms."

For additional rulings finding that uppers are not formed because their
bottoms are not closed, see NY 887332, dated July 15, 1993 (leather
upper fully lasted to cardboard insole, which is then mostly cut out
ruled to be not formed); HQ 089764, dated August 15, 1991 (upper that
was front lasted, but not back lasted, and had two holes in the bottom
ruled to be not formed); HQ 088483, dated March 19, 1991 (unlasted upper
with 3 inch long hole in bottom ruled as not being formed); HQ 085291,
dated March 1, 1990 (moccasins with opening in bottoms ruled as not
being formed); and HQ 085573, dated December 12, 1989 (leather uppers
with opening cut out of bottoms ruled as not being formed); NY F88270,
dated June 16, 2000; NY F86334, dated May 4, 2000; NY F82881, dated
February 28, 2000; NY F82848, dated February 28, 2000; and NY E88143,
dated November 10, 1999.

However, in HQ 958966 and HQ 958056, dated August 28, 1995, CBP ruled
that an otherwise formed upper would be classified as formed despite
having a hole cut out of its bottom. CBP overlooked the closed bottoms
requirement because the uppers were substantially shaped and attached to
a footbed. These rulings ignored the plain language of Note 4, requiring
formed uppers to have "closed bottoms." Instead the focus was on the
extent of formation of the upper. If the upper was fully formed, but for
the hole cut out of the bottom, or the upper had a substantial bottom,
albeit with a hole cut out of it, the uppers were considered "formed."
These rulings are inconsistent with our interpretation and application
of Note 4, which requires that formed uppers have closed bottoms.
Accordingly, concurrent with this ruling, CBP is revoking HQ 958056.

The bottom of the instant upper is not closed because of the 1-¼ inch
hole. Accordingly, we find that the instant upper is not a "formed
upper."

HOLDING:

HQ 958966, dated March 26, 1997, is hereby revoked. The subject
merchandise is classified in subheading 6406.10.6500, HTSUSA, 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:
Other: Of leather." The general column one duty rate is Free.

In accordance with 19 U.S.C. §1625(c), this ruling will become effective
60 days after its publication in the [Customs Bulletin.]{.smallcaps}

Sincerely,

Myles Harmon, Director

> Commercial Rulings Division