Footwear; Formed Leather Upper; Attached Sock Liner; Back Part Lasting

HQ 089601 September 5, 1991 CLA-2 CO:R:C:M 089601 DWS CATEGORY: Classification TARIFF NO.: 6406.10.05; 6406.10.65 Mr. John B. Pellegrini Ross & Hardies 529 Fifth Avenue New York, NY 10017-4608 RE: Footwear; Formed Leather Upper; Attached Sock Liner; Back Part Lasting Dear Mr. Pellegrini: This is in response to your letter of May 24, 1991, written on behalf of the Timberland Company, concerning the classification of certain leather formed uppers with attached sock liners under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). FACTS: The upper consists of a leather plug, vamp and quarters. The upper is front part lasted, but it is not back part lasted. It has an oblong hole in the bottom measuring 5 inches in length and between 2 inches and 3/4 inch in width. The upper has a sewn-in sock which runs from the instep to the heel. The sock is made of elasticized nylon and has a bottom made of a non-woven textile material (polyester fibers impregnated with plastic). You state that "[t]he purpose of the sock is to provide firm fit in active use." The sewn-in sock closes the bottom of the upper. ISSUE: What is the proper classification of the upper and the sewn- in sock liner under the HTSUSA? LAW AND ANALYSIS: Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. You claim that the upper and sewn-in sock liner should be classifiable under subheading 6406.10.65, HTSUSA, which provides for: "[u]ppers and parts thereof, other than stiffeners: [o]ther: [o]f leather." U.S. Note 4 to Chapter 64, HTSUSA, provides in part the following: "[p]rovisions 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." In HQ 088035, dated February 1, 1991, this office stated that "[w]e consider the leather upper and the sock lining to be a formed upper for the following reasons: 1. the upper and sock lining are constructively assembled pursuant to GRI 2(a), HTSUSA; 2. the upper is both front part and back part lasted; and 3. since the upper and sock lining are constructively assembled, we will treat the bottom as being closed." It is your argument that even though the upper is closed at the bottom, it cannot be formed because it is not back part lasted. However, it is our position that the upper is formed because it has been shaped by lasting and its bottom has been closed. The upper may not be back part lasted in the traditional sense, but the rigid sock liner performs the same function of shaping the back part of the upper. The elasticized sock is sewn-in to the top of the upper, and the lower, rigid "midsole" forms a mold for the bottom part of the upper to shape around. Since the rigid sock liner performs the same function as if the upper had been back part lasted, under HQ 088035, the upper is "formed" for classification purposes under the HTSUSA. HOLDING: The subject leather upper and sewn-in sock liner are classifiable under subheading 6406.10.05, HTSUSA, which provides for: "[u]ppers and parts thereof, other than stiffeners: [f]ormed uppers: [o]f leather or composition leather: [f]or men, youths and boys." The general, column one rate of duty is 8.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division