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HQ 087458

September 19, 1990

CLA-2 CO:R:C:G 087458 ALS


TARIFF NO.: 6406.10.6500, HTSUS

Ms. Cheri Gravatt
Import Manager
The Florsheim Shoe Company
130 South Canal Street
Chicago, Illinois 60606-3999

RE: Moccasin-Type Leather Uppers

Dear Ms. Gravatt:

This is in reference to your letter of May 2, 1990, requesting a binding ruling on the classification and marking of a leather footwear upper to be produced in Haiti and completed in the United States. A sample was submitted for examination.


The sample submitted consists of a two eyelet moccasin-type leather upper. It is blue-green in color and appears to be designed for a man's right foot. It is front-part and back- part lasted. It has an elliptical hole in the bottom commencing about 1 inch forward of the rear edge of the heel. The hole is approximately 2 1/2 inches long and approximately 7/8 inch wide at one end of the hole and approximately 5/8 inch wide at the opposite end of the hole.


Is the sample upper considered a "formed upper" for tariff purposes?


Classification of goods under the Harmonized Tariff Schedule of the United States (HTSUS) 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, HTSUS, sets forth the criteria for determining whether an upper is considered a formed upper for tariff purposes. That note reads in pertinent 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 the sample upper is front-part and back-part lasted, it meets that part of Additional U.S. Note 4, Supra, regarding uppers which have been shaped by lasting, molding or otherwise. They are formed uppers. It is thus necessary to consider 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 085573, 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 are not closed within the meaning of Additional U.S. Note 4 to Chapter 64, Supra."

In 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 upper in this request likewise has a substantial opening in its bottom, it cannot be considered a formed upper for tariff purposes.

For the same reason, the sample upper is not required to be individually marked to indicate its country of origin. The sample falls within the scope of several previous rulings which make it clear that if there is a substantial opening or cut-out in the upper which can only be closed with additional material in an additional manufacturing process performed in the U.S., the substantial transformation test is met. As such, the U.S. manufacturer is considered the ultimate purchaser and marking of only the outermost container in which the upper reaches the ultimate purchaser is required. See HQ 085726, March 6, 1990, HQ 073078, September 30, 1983, HQ 721106, August 23, 1983, HQ 073307, October 28, 1983.


The sample upper is classifiable under subheading 6406.10.6500, HTSUS, 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. The upper may be entitled to duty free entry under the Generalized System of Preferences or the Caribbean Basin Economic Recovery Act, if otherwise qualified.

Since the sample uppers will be substantially transformed in the United States, the U.S. manufacturer will be the ultimate purchaser and it is only necessary for the outermost container in which the uppers reach such purchaser to be marked. Individual marking of the sample uppers is not required.


John Durant, Director
Commercial Rulings Division

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