HQ 951508

July 8, 1992

CLA-2 CO:R:C:M 951508 DWS

CATEGORY: Classification

TARIFF NO.: 6406.10.05; 6406.10.10; 6406.10.65; 6406.99.60

District Director

U.S. Customs Service

La Puntilla #1

Old San Juan, PR 00903

RE: Protest No. 4909-91-100143; Footwear; Leather Upper;

Sock Liner; Constructively Assembled; Goods Shipped in Bulk;

HQ 951065; HQ 081999; HQ 088035; HQ 089580

Dear Sir:

This is our decision on Application for Further Review of

Protest No. 4909-91-100143, dated October 16, 1991, concerning

your action in classifying and assessing duty on certain footwear

uppers and accompanying sock liners under the Harmonized Tariff

Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of various styles of leather

footwear uppers for both men and women, and accompanying sock

liners. The types of uppers which were reclassified by your

office and are the subject of this protest are boat shoe uppers

and casual shoe uppers. Both types of uppers are front-part and

back-part lasted, and have a substantial hole in the bottom. The

subject uppers are in some entries imported with an equal number

of sock liners, and are in other entries imported with an uneven

number of sock liners.

ISSUE:

What is the proper classification of the subject uppers and

sock liners under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. GRI 1 provides that classification is determined

according to the terms of the heading and any relative section

and chapter notes.

The merchandise was entered under subheading 6406.10.65,

HTSUS, which provides for: \"\[u\]ppers and parts thereof, other

than stiffeners: \[o\]ther: \[o\]f leather\", and under subheading

6406.99.60, HTSUS, which provides for: \"\[p\]arts of footwear;

removable insoles, heel cushions and similar articles; gaiters,

leggings and similar articles, and parts thereof: \[o\]ther: \[o\]f

other materials: \[o\]f leather.\" However, the merchandise was

liquidated under subheading 6406.10.05, HTSUS, which provides

for: \"\[f\]ormed uppers: \[o\]f leather or composition leather: \[f\]or

men, youths and boys\", and under subheading 6406.10.10, HTSUS,

which provides for: \"\[f\]ormed uppers: \[o\]f leather or composition

leather: \[f\]or other persons.\"

Counsel for the importer argues that the merchandise does

not constitute formed uppers, because, at least in the entries

with uneven numbers of uppers to sock liners, the uppers and

liners are not constructively assembled for classification

purposes.

U.S. Note 4 to Chapter 64, HTSUSA, provides, in part, the

following: \"\[p\]rovisions 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 HQ 088035, dated February 1, 1991, this office stated

that \"\[w\]e consider the leather upper and the sock lining to be a

formed upper for the following reasons:

1\. the upper and sock lining are constructively assembled

pursuant to GRI 2(a), HTSUSA;

2\. the upper is both front part and back part lasted; and

3\. since the upper and sock lining are constructively

assembled, we will treat the bottom as being closed.\"

Because the uppers are fully lasted, they will be considered

\"formed\" if they are \"constructively assembled\".

GRI 2(a) provides that:

Any reference in a heading to an article shall be taken to

include a reference to that article incomplete or

unfinished, provided that, as entered, the incomplete or

unfinished article has the essential character of the

complete or finished article.

GRI 2(a) also applies to articles which are entered

unassembled or disassembled. As was stated in HQ 088483, dated

March 19, 1991, \"\[t\]he components are clearly intended to be

assembled together, and, with the addition of other pieces, most

importantly an outersole, will be sold to consumers as finished

footwear.\"

In HQ 089580, dated September 6, 1991, we classified fully

lasted leather uppers, accompanied by an even number of sock

liners, as constructively assembled formed uppers. Therefore,

based upon HQ 089580 and the above reasoning, the subject entries

of uppers, accompanied by an even number of sock liners, are

constructively assembled and are classifiable as formed uppers

under the HTSUS.

However, counsel argues that the entries with an uneven

number of uppers to liners is distinguishable from HQ 089580. We

agree. HQ 951065, dated February 23, 1992, dealt with the

classification of component parts of stun guns. The issue in

that case was whether, for GRI 2(a) purposes, the components made

up an unfinished, complete stungun. One shipment of the

components contained:

\(1\) several cartons containing a total of 2,000 printed

circuit boards, (2) several cartons containing a total of

2,000 polyform trays, (3) several cartons containing a total

of 2,000 injection plastic cases, 1,000 brochures and 2,000

hand ribbon carrying straps, (4) several cartons containing

a total of 2,000 plastic individual boxes and (5) one carton

containing a total of 10,000 name plates and 10,000 screws.

In HQ 951065, we stated that:

\[i\]n HQ Ruling 081999 (December 10, 1990), we determined

whether components packaged separately in bulk and entered

for assembly in the United States were classified as

unassembled goods pursuant to General Rule of Interpretation

(GRI) 2(a). We found that goods which were not recognized

as unassembled goods imported as \"kits\", but which were

packaged in bulk for an assembly operation were not

classified as unassembled goods. We held that the

components were classified separately under the appropriate

headings of the HTSUS.

The components under consideration as entered are not

recognized as unassembled stunguns but are entered in bulk

for an assembly operation in the United States. The

components should be classified separately.

Because many of the entries contain uppers and sock liners

in uneven numbers, under HQ 951065 those entries cannot be said

to contain constructively assembled formed uppers for

classification purposes. The uppers and sock liners are entered

in bulk for an assembly operation in the United States, and

therefore must be classified separately.

HOLDING:

Entries containing the subject uppers and accompanying even

number of sock liners are classifiable under subheading

6406.10.05, HTSUS, which provides for: \"\[f\]ormed uppers: \[o\]f

leather or composition leather: \[f\]or men, youths and boys\", and

under subheading 6406.10.10, HTSUS, which provides for: \"\[f\]ormed

uppers: \[o\]f leather or composition leather: \[f\]or other

persons.\"

Entries containing the subject uppers and accompanying

uneven number of sock liners are classifiable under subheading

6406.10.65, HTSUS, which provides for: \"\[u\]ppers and parts

thereof, other than stiffeners: \[o\]ther: \[o\]f leather\", and under

subheading 6406.99.60, HTSUS, which provides for: \"\[p\]arts of

footwear; removable insoles, heel cushions and similar articles;

gaiters, leggings and similar articles, and parts thereof:

\[o\]ther: \[o\]f other materials: \[o\]f leather.\"

In accordance with the reasoning in this ruling, the protest

should be granted in part and denied in part. A copy of this

decision should be attached to the Customs Form 19 and provided

to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division