# HQ H007658

**January 10, 2008**

**CLA-2 OT:RR:CTF:TCM H007658 JER**

**CATEGORY:** Classification

**TARIFF NO.:** 6406.10

Michael S. O'Rourke, Esq.

Rode & Qualey

55 West 39^th^ Street

New York, NY 10018

**RE:** Clarification of HQ W968401, classification of certain formed
boot uppers; Rocky Brands, Inc.; "Substantial Openings."

Dear Mr. O'Rourke:

This is in reference to Headquarters Ruling Letter (HQ) W968401, issued
to you under the Harmonized Tariff Schedule of the United States (HTSUS)
by United States Customs and Border Protection (CBP). The subject ruling
letter was in reply to your request of September 5, 2006, which
concerned the classification of certain formed boot uppers with a sock
bottom and inner GORE-TEX® liner which are sewn into the boot uppers.

We received an inquiry from your office on behalf of your client, Rocky
Brands, Inc., requesting clarification of what was perceived to be
ambiguous language regarding the classification of certain boot uppers.
Specifically, you aver that uppers with a GORE-TEX® liner must also have
a substantial opening through the GORE-TEX® liner in order to be
classified as "unfinished uppers" rather than as "formed uppers."

In HQ W968401, dated February 6, 2007, it was determined that the
subject boot uppers were classifiable in subheading 6406.10, HTSUS, as
"formed uppers." CBP has applied a strict interpretation of Additional
Note 4 to Chapter 64, HTSUS, and has held that if the bottoms of uppers
have a hole cut out of them, then the uppers are not closed and thus not
formed. *See* Headquarters Ruling Letter (HQ) 966539 and HQ 966540, both
issued on September 26, 2003. In these rulings, CBP ruled that certain
uppers were not classifiable in subheading 6406.10, HTSUS, because the
subject uppers did not have closed bottoms. CBP held that, where the
bottoms of uppers have substantial openings, the uppers are not closed
and therefore cannot be considered to be "formed uppers."

We noted in HQ W968401, that "none of the perforations or holes extend
through the GORE-TEX® liner." We also stated that, although the boot
uppers had four perforated circles located at the bottom that circular
flaps were secured within each perforated circle. Hence, the subject
merchandise had closed bottoms with no substantial opening in either the
bottom sock or inner liner.

We have reexamined HQ W968401 and determined that the language used in
the overall classification and description of the subject merchandise
was proper and unambiguous. We note that for purposes of distinguishing
"unfinished uppers" and "formed uppers," in our previous rulings as well
as in the Chapter Notes to heading 6406, HTSUS, we have held that when
determining whether an upper is classified as "formed," a primary factor
is discerning whether or not the bottom of the upper is closed. HQ
085573, dated December 28, 1989, stated that, "uppers which have
substantial openings cut out of the bottoms are not closed within the
meaning of Additional U.S. Note 4 to Chapter 64, HTSUS." As such, it is
necessary that each aspect of the upper conform to the standard set
forth herein.

By virtue of Additional U.S. Note 4 to Chapter 64, HTSUS, the subject
uppers and uppers similar to those presented in HQ W968401 are
classified as "formed uppers" where it is determined that the bottoms
have no substantial opening.

Your request that we include specific statements regarding uppers with a
GORE-TEX® booty will not be accommodated herein. We find that such
specific matters were not at issue in HQ W968401 and therefore will not
be further discussed.

We hope you find this information helpful. If you have further questions
or concerns, please contact myself or John Rhea of my staff at (202)
572-8785.

Sincerely,

> Gail A. Hamill, Chief
>
> Tariff Classification and Marking Branch