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HQ 958265

August 7, 1995

CLA-2 R:C:M 958265 DFC


TARIFF NO.: 6406.10.35

Ms. Kelly M. Callahan
Traffic Manager
New Balance Athletic Shoe, Inc.
5 S. Union St.
Lawrence MA 01841

RE: Footwear; Formed uppers; HRL's 956112, 950946; 073307

Dear Ms. Callahan:

In a letter dated July 7, 1995, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a footwear upper. A sample was submitted for examination.


The sample submitted, identified as Style M705WN, is a mesh fabric slip-lasted upper which has not been completely sewn to close the bottom. Over a dozen substantial (imitation leather) plastic pieces are stitched onto it, basically in the area that will be "external" in the finished shoe. A semi-rigid inside back counter has been bent, probably by hand, into a curve and stitched at both of its ends to the large, imitation leather, outside back counter-side flash-anchor piece. This gives the back of the upper the rounded, basically semi-circular shape of a shoe. This upper will be used after importation in the manufacture of athletic footwear.

You maintain that the Style M705WN is an unformed upper classifiable under subheading 6406.10.85, HTSUS, which provides for parts of footwear(including uppers whether or not attached to soles other than outer soles), uppers and parts thereof, other than stiffeners, other, other, uppers of which less than 50 percent of the external surface area (including any leather, rubber or plastics accessories or reinforcements such as mentioned in note 4(a) to this chapter) is textile materials. The applicable rate of duty for this provision is 8.6% ad valorem.


Is Style M705WN considered a "formed Upper" for tariff purposes?


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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Footwear is provided for in Chapter 64, HTSUS. Additional U.S. Note 4 to chapter 64, HTSUS, provides in pertinent part, as follows:

. . . Provisions 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.

Heading 6406, HTSUS, provides in pertinent part, for parts of footwear (including uppers whether or not attached to soles other than outer soles). . . . Uppers and parts thereof, other than stiffeners are provided for in subheading 6406.10, HTSUS. Breakouts at the 8 and 10 digit level are determined according to component material and value.

Style M705WN was one of the styles ruled on in HRL 956112 dated July 25, 1995. The sample of the style before us differs from that ruled on in HRL 956112 in that about 4 inches of the seam down the middle of the bottom of the slip-lasted upper has been left unstitched. In determining whether an upper is formed, one of the factors we look to is whether the bottom of the upper is closed. Inasmuch as the upper of Style M705WN is partially assembled, GRI 2(a), HTSUS, is applicable. GRI 2(a), HTSUS, reads, as follows:

(a) Any reference in a heading to an article shall be taken to include 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.

The Harmonized Commodity Description and Coding System Explanatory Notes to the HTSUS (EN), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).

GRI 2(a), HTSUS, applies to articles which are entered unassembled or disassembled. EN (VII) to GRI 2(a) reads, as follows:

(VII) For the purposes of the Rule, "articles presented unassembled or disassembled" means articles the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only simple assembly operations are involved.

The additional stitching necessary to finish joining together the 2 sides of the seamed sock [bottom] is a "simple assembly" and the 2 sides of the seamed sock are "constructively assembled" within the purview of GRI 2(a), HTSUS, supra. Therefore, since the seamed sock is "constructively assembled," it is our opinion that Style M705WN has a closed bottom. See HRL 950946 dated June 22, 1992, wherein a sewing operation was considered a "simple assembly." See, also HRL 073307 dated October 28, 1983.


Style M705WN is a formed upper classifiable under subheading 6406.10.35, HTSUS, which provides for parts of footwear (including uppers whether or not attached to soles other than outer soles), uppers and parts thereof, other than stiffeners, formed uppers of textile materials, other, valued over $6.50 but not over $12/pair. The applicable rate of duty for this provision is 84.4 cents per pair plus 18.7% ad valorem.


John Durant, Director
Commercial Rulings Division

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