Clarification of HQ W968401, classification of certain formed boot uppers; Rocky Brands, Inc.; "Substantial Openings."

HQ H007658 January 10, 2008 CLA-2 OT:RR:CTF:TCM H007658 JER CATEGORY: Classification TARIFF NO.: 6406.10 Michael S. O’Rourke, Esq. Rode & Qualey 55 West 39th Street New York, NY 10018 RE: Clarification of HQ W968401, classification of certain formed boot uppers; Rocky Brands, Inc.; “Substantial Openings.” Dear Mr. O’Rourke: This is in reference to Headquarters Ruling Letter (HQ) W968401, issued to you under the Harmonized Tariff Schedule of the United States (HTSUS) by United States Customs and Border Protection (CBP). The subject ruling letter was in reply to your request of September 5, 2006, which concerned the classification of certain formed boot uppers with a sock bottom and inner GORE-TEX® liner which are sewn into the boot uppers. We received an inquiry from your office on behalf of your client, Rocky Brands, Inc., requesting clarification of what was perceived to be ambiguous language regarding the classification of certain boot uppers. Specifically, you aver that uppers with a GORE-TEX® liner must also have a substantial opening through the GORE-TEX® liner in order to be classified as “unfinished uppers” rather than as “formed uppers.” In HQ W968401, dated February 6, 2007, it was determined that the subject boot uppers were classifiable in subheading 6406.10, HTSUS, as “formed uppers.” CBP has applied a strict interpretation of Additional Note 4 to Chapter 64, HTSUS, and has held that if the bottoms of uppers have a hole cut out of them, then the uppers are not closed and thus not formed. See Headquarters Ruling Letter (HQ) 966539 and HQ 966540, both issued on September 26, 2003. In these rulings, CBP ruled that certain uppers were not classifiable in subheading 6406.10, HTSUS, because the subject uppers did not have closed bottoms. CBP held that, where the bottoms of uppers have substantial openings, the uppers are not closed and therefore cannot be considered to be “formed uppers.” We noted in HQ W968401, that “none of the perforations or holes extend through the GORE-TEX® liner.” We also stated that, although the boot uppers had four perforated circles located at the bottom that circular flaps were secured within each perforated circle. Hence, the subject merchandise had closed bottoms with no substantial opening in either the bottom sock or inner liner. We have reexamined HQ W968401 and determined that the language used in the overall classification and description of the subject merchandise was proper and unambiguous. We note that for purposes of distinguishing “unfinished uppers” and “formed uppers,” in our previous rulings as well as in the Chapter Notes to heading 6406, HTSUS, we have held that when determining whether an upper is classified as “formed,” a primary factor is discerning whether or not the bottom of the upper is closed. HQ 085573, dated December 28, 1989, stated 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, HTSUS.” As such, it is necessary that each aspect of the upper conform to the standard set forth herein. By virtue of Additional U.S. Note 4 to Chapter 64, HTSUS, the subject uppers and uppers similar to those presented in HQ W968401 are classified as “formed uppers” where it is determined that the bottoms have no substantial opening. Your request that we include specific statements regarding uppers with a GORE-TEX® booty will not be accommodated herein. We find that such specific matters were not at issue in HQ W968401 and therefore will not be further discussed. We hope you find this information helpful. If you have further questions or concerns, please contact myself or John Rhea of my staff at (202) 572-8785. Sincerely, Gail A. Hamill, Chief Tariff Classification and Marking Branch