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NY 806444

March 1, 1995

CLA-2-64:S:N:N8:346 806444


TARIFF NO.:9802.00.5010; 6406.10.6500; 6406.10.1000

Mr. Michael Skidmore
Tower Group Int'l
POB 192
Boston, MA 02101-3022

RE: The tariff classification of uppers from the Dominican Republic (DO), CBI-2, HTS Gen. Note 7

Dear Mr. Skidmore:

In your letter dated 1-12-95, received here 1-31-95, for New Balance Athletic Shoe Company, you requested a tariff classification ruling.

Your letter presents four "scenarios" concerning the two samples you submitted of stock MK720 at two different stages of completion. Scenarios 1 and 3 concern the light tan moccasin which has not been back part lasted and has about a 4 inch by 1 inch hole in its bottom rear. Scenarios 2 and 4 concern a dark brown sample, which is the same as the light tan one except it has been lasted to a back part, cardboard insole with a steel shank. In Scenarios 1 and 2, the leather hides and all other materials will be products of the USA which, we assume, will be sent directly to DO from the USA, but in Scenarios 3 and 4, the leather will be a product of Mexico.

Since your letter specifically asks about preferential treatment, we assume you are interested only in the classification which would produce the lowest duty, consistent with the facts you have presented.

Scenario 1- You state, "The value of the materials is $18.73 and the cost of the added labor is $4.10." The applicable subheading for Scenario 1 will be 9802.00.5010, Harmonized Tariff Schedule of the United States (HTS), which provides for, free of duty, articles, which were returned to the US after having been exported for repairs or alterations, not made pursuant to a warranty, and which meet the conditions of US note 2-b to Subchapter II of Chapter 98. We assume that you will be able to supply the port of entry with whatever documents or other evidence it deems necessary to confirm that those conditions have, in fact, been met. Customs Headquarters has issued no directives or guidelines so it would likely be useful to discuss the documentation and evidence required with the Customs personnel in each district in which you may make entry.

Per Statistical Note 2 to Subchapter II, you must split out on the Customs entry, "the dutiable value, i.e., the value of the foreign processing" and assign to it the classification that would ordinarily apply in the absence of US note 2-b to that Subchapter. This value appears to be the $4.10 which you cite. Note that in this context there is never any duty actually payable on this "dutiable value". The classification that would ordinarily apply to this style is 6406.10.6500.

Further note that, per that note, the 2 lines reported must add up to the "total value of the article". This value includes the cost of freight and handling to send the materials to DO, which your statement does not appear to account for, as well as all other costs incurred by the buyer prior to shipment of the article to the USA.

Articles classifiable under subheading 6406.10.6500, HTS, which are products of DO are also entitled to duty free treatment under the "regular" CBI, i.e., under HTS General Note 7, upon compliance with all applicable regulations. Note that the pieces cut from the leather are treated as "materials produced" in the DO for the purposes of the "35 percent rule" in HTS General Note 7-b- i-B so that test is easily met in this scenario. These articles are excluded from duty free treatment under the Generalized System of Preferences (GSP) per HTS General Note 4-d.

Scenario 2- You state, "Total cost of materials is $19.23; cost of added labor is $4.30." The applicable subheading is 9802.00.5010, HTS, as in the above. Regarding 9802.00.5010, there are two differences from Scenario 1. First, the classification that would ordinarily apply is 6406.10.1000, as a "formed" upper of leather for, we assume, other than only men, boys or youths since you have given no information regarding the eventual wearers. Second, the "dutiable value" would be $4.30 per pair.

Neither GSP nor "regular" CBI is possible.

Scenario 3- Here, the light tan upper is classified in 6406.10.6500, HTS, dutiable at 3 percent, which provides for "unformed" uppers of leather. It is not classifiable in 9802.00.5010.

As in Scenario 1, the total value is presumably eligible for duty free treatment under "regular CBI". The pieces cut in DO from the Mexican leather are treated as "materials produced" in the DO. GSP does not apply.

Scenario 4- The lasted upper is classified in 6406.10.1000, dutiable at 10 percent, as described above in Scenario 2.

Neither 9802.00.5010, nor GSP, nor "regular" CBI apply so we assume you are interested in the possibility of a partial duty reduction.

Assuming that the counter is cut to shape in the USA and that the amounts you cite for the counter, the tuck and shank, and the thread are their cost as they leave the USA, approximately $.92 per pair will be separately classifiable under 9802.00.8065, free of duty, as articles, not assembled in Mexico, that were assembled abroad of fabricated components, the products of the United States, which were exported in condition ready for assembly without further fabrication, which have not lost their physical identity, and which have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process. We have not included in the $.92 the $.10 for "cement-finished upper thread" since cement, in general, is not a "component" for assembly purposes and we are not clear what the "finished upper thread" is.

Note that, per Statistical Note 1 to Subchapter II of HTS Chapter 98, the "dutiable value", here classified in HTS 6406.10.1000, is the "total value of the article less the value of U.S. fabricated components" and that the "dutiable value" is, in fact, dutiable in this context. See our comments concerning "total value" in Scenario 1.

Your samples are being returned to you as you requested.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


Jean F. Maguire
Area Director

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