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HQ 966148

September 26, 2003

CLA-2:RR:CR:TE 966148 JFS


TARIFF NO.: 6406.10.6000

Mr. Jim Hoffman
Hoffman Boots
100 E. Riverside
Kellogg, ID 83837

RE: Revocation of NY H87189; Not Formed Uppers

Dear Mr. Hoffman:

This is in response to your request for reconsideration of New York Ruling Letter (NY) H87189, dated February 15, 2002, wherein the Bureau of Customs and Border Protection (CBP) classified uppers to be used in the manufacture of boots in subheading 6406.10.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). For the reasons that follow, this ruling revokes NY H87189.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY H87189, was published on July 16, 2003, in the Customs Bulletin, Volume 37, Number 29. As explained in the notice, the period within which to submit comments on this proposal ended on August 18, 2003. No comments were received in response to this notice.


The article under consideration is an upper used in the construction of heavy-duty boots known as “calks” that are worn by loggers in the logging industry. The upper is fully lasted and is attached to a footbed that is composed of four layers. Attached to the footbed is a midsole that is composed of rubber that is ¼ of an inch thick. A ¾ inch diameter hole has been cut through the footbed and midsole. This hole will be plugged after the upper is imported into the United States.

On June 25, 2001, CBP issued H82672 to Tower Group International, on behalf of Hoffman Boots. The upper under consideration in that ruling was nearly identical to the instant upper, except that it did not have a hole punched out of the heel portion of the footbed and midsole. CBP classified that upper as a “formed upper” in subheading 6406.10.50, HTSUSA, with a duty rate of 26.2 percent ad valorem.

In NY H87189, the subject upper was also considered to be “formed” and was classified in subheading 6406.10.50, HTSUSA, which provides, in part, for: “Parts of footwear . . . and parts thereof: Uppers and parts thereof, other than stiffeners: Formed Uppers: Other: Other.”

You contend the upper with the hole should be classified in subheading 6406.10.6000, HTSUSA, which provides, in part, for Parts of footwear . . . and parts thereof: Uppers and parts thereof, other than stiffeners: Other: Of rubber or plastics. The general column one rate of duty is Free.


Whether an upper with a nickel-sized hole cut out of the bottom has a “closed bottom.”


Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

Additional U.S. Note 4 to chapter 64, HTSUS, provides as follows:

Provisions of subheading 6406.10 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.

The instant upper has been fully shaped by lasting and molding. Thus, the only issue is whether, by virtue of the nickel-sized hole cut out of the footbed and mid-sole, the upper is considered to have a closed bottom.

CBP has generally strictly interpreted Additional U.S. Note 4 and held that if the bottoms of uppers have a hole cut out of them, they are not closed and the uppers are not formed. Most recently, in HQ 561499, CBP ruled that sandals with a plastic footbed in which a nickel-sized hole cut out of the footbed and mid-sole, which would be plugged after importation, did not have closed bottoms. CBP relied on HQ 087458, dated September 19, 1990; HQ 085573, dated December 28, 1989; and HQ 085291, dated March 1, 1990, wherein CBP ruled that because the bottoms had holes, the uppers did not have “closed bottoms.”

For additional rulings finding that uppers are not formed because their bottoms are not closed, see NY 887332, dated July 15, 1993 (leather upper fully lasted to cardboard insole, which is then mostly cut out ruled to be not formed); HQ 089764, dated August 15, 1991 (upper that was front lasted, but not back lasted, and had two holes in the bottom ruled to be not formed); HQ 088483, dated March 19, 1991 (unlasted upper with 3 inch long hole in bottom ruled as not being formed); HQ 085291, dated March 1, 1990 (moccasins with opening in bottoms ruled as not being formed); and HQ 085573, dated December 12, 1989 (leather uppers with opening cut out of bottoms ruled as not being formed); NY F88270, dated June 16, 2000; NY F86334, dated May 4, 2000; NY F82881, dated February 28, 2000; NY F82848, dated February 28, 2000; and NY E88143, dated November 10, 1999.

However, CBP has ruled that an otherwise formed upper would be classified as formed despite having a hole cut out of its bottom. In HQ 958966, dated March 26, 1997, and HQ 958056, dated August 28, CBP overlooked the closed bottoms requirement because the uppers were substantially shaped and attached to a footbed. These rulings ignored the plain language of Note 4, requiring formed uppers to have “closed bottoms.” Instead the focus was on the extent of formation of the upper. If the upper was fully formed, but for the hole cut out of the bottom, or the upper had a substantial bottom, albeit with a hole cut out of it, the uppers were considered “formed.” These rulings are inconsistent with our interpretation and application of Note 4, which requires that formed uppers have closed bottoms. Accordingly, concurrent with this ruling, CBP is revoking HQ 958966 and HQ 958056.

The bottom of the instant upper is not closed because of the nickle sized hole. Accordingly, we find that the instant upper is not a “formed upper.”


NY H87189, dated February 25, 2002, is hereby revoked. The subject merchandise is classified in subheading 6406.10.6000, HTSUSA, which provides, for “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Uppers and parts thereof, other than stiffeners: Other: Of rubber or plastics.” The general column one duty rate is Free.

In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.


Myles Harmon, Director

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