CLA-2 CO:R:C:G 088043 DFC
Mr. Rusty Funk
Omni International Distributors Inc.
RD3 Box 152 B1 Falls Road
Hudson, New York 12534
RE: Reconsideration of New York Ruling Letter (NYRL) 854037
dated July 18, 1990, concerning the tariff classification
of a mountaineering boot with two liners. NYRL 854037
affirmed. Boot, mountaineering; Band foxing-like
Dear Mr. Funk:
In a letter dated September 26, 1990, you asked us to
reconsider the result reached in NYRL 854037 dated July 18,
1990, concerning the tariff classification of a mountaineering
boot with two liners.
FACTS:
The sample produced in West Germany is a plastic, high-top,
lace-up, mountaineering boot with two liners. The boot is made
from two pieces of molded plastic, a bottom/shaft and a shaft
extension. The two pieces are attached by two oversized metal
rivets on both sides of the ankles in a manner which permits
the shaft extension to pivot forward and backward on those
rivets. The boot has a molded rubber outsole. It also has
a 1-1/16 inch wide rubber strip applied to the front and sides
of the upper at the sole.
Both liners are high-top lace-ups with applied
rubber/plastic soles and different types and amounts of
insulation. Although you state that both liners have uppers
on which the outer fabric is nylon cordura, the liner labelled
"warm weather" actually has an upper of which the external
surface area is predominantly, but not over 90 percent,
plastic. The liner labelled "cold weather" has a foxing-like
band.
-2-
In NYRL 854037 our New York office ruled that the subject
merchandise was properly classifiable under subheading
6402.91.90, HTSUSA, as other footwear with outer soles and
uppers of rubber or plastics, covering the ankle, having a
foxing-like band, other, other, valued over $12 per pair. The
applicable rate of duty for this provision is 20 percent ad
valorem.
It is your contention that the rubber strip which encircles
approximately 67 percent of the perimeter of the boot is not a
foxing-like band. The rationale for your position is that the
strip is called a "rand" rather than a foxing-like band and it
does not contribute to the adhesion of the sole to the upper.
Further, the boot can function without the "rand."
ISSUE:
Does the boot possess a foxing-like band?
Does the boot with its liners constitute a set for tariff
purposes?
LAW AND ANALYSIS:
T.D. 83-116 lists seven characteristics of a foxing-like
band. Those characteristics are as follows:
1. The term "foxing-like" applies to that which has the
same, or nearly the same appearance, qualities, or
characteristics as the foxing appearing on the traditional
sneaker or tennis shoe.
2. A foxing-like band need not be a separate component.
3. A foxing-like band may or may not secure the joint
between the sole and upper.
4. A foxing-like band must be applied or molded at the
sole and must overlap the upper.
5. A foxing-like band must encircle or substantially
encircle the entire shoe.
6. A foxing-like band may be attached by any means.
7. Unit molded footwear is considered to have a
foxing-like band if a vertical overlap of 1/4 inch
or more exists from where the upper and the outsole
initially meet measured on a vertical plane. If
this vertical overlap is less than 1/4 inch, such
footwear is presumed not to have a foxing-like band.
-3-
The 1-1/16 inch rubber strip which you call a "rand" is
applied at the sole, measures over 1/4 inch in height and
substantially encircles the perimeter of the shoe.
Although the strip does not function as a foxing, it has
the appearance of a foxing.
In view of the foregoing, it is our opinion that the strip
constitutes a foxing-like band for tariff purposes. The fact
that you may call it a "rand" does not make it something other
than a foxing-like band.
In applying the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the Customs Service must follow the
terms of the statute. Classification of goods under the HTSUSA
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 taken in
order]." In other words, classification is governed first by
the terms of the headings of the tariff and any relative
section or chapter notes.
GRI 3, HTSUSA, is relevant in determining whether the boot
and liners constitute a set for tariff purposes. It reads in
pertinent part as follows:
3. When by application of Rule 2(b) or for any other
reason , goods are prima facie classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. However,
when two or more headings each refer to part
only of the materials or substances contained
in mixed or composite goods . . . those
headings are to be regarded as equally specific
in relation to those goods, even if one of them
gives a more complete or precise description of
the goods.
-4-
(b) Mixtures, composite goods consisting of
different materials or made up of different
components, and goods put up in sets for retail
sale which cannot be classified by reference to
3(a), shall be classified as if they consisted
of the material or component which gives them
their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to 3(a)
or 3(b), they shall be classified under the heading
which occurs last in numerical order among those
which equally merit consideration.
GRI 6, HTSUSA, which is also relevant here provides in
pertinent part that "[f]or legal purposes, the classification
of goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis, to the above rules, on
the understanding that only subheadings at the same level are
comparable. . . ."
GRI 3(b), HTSUSA, is germane here because GRI 3(a), HTSUSA,
cannot be used in determining classification. The Explanatory
Notes for GRI 3, HTSUSA, which constitute the official
interpretation of the Harmonized System at the international
level, state that the term "goods put up in sets for retail
sale" means goods that:
(a) consist of at least two different articles prima
facie classifiable in different headings ( or, by GRI
6 subheadings);
(b) consist of products or articles put together to meet
a particular need or carry out a specific activity;
and
(c) are put up in a manner suitable for sale directly to
users without repacking (e.g., in boxes or cases or
on boards).
The boot is to be imported with both a winter and a summer
liner. The boot imported with a winter liner is prima facie
classifiable under subheading 6402.91.50, HTSUSA, as protective
footwear while the boot imported with a summer liner is not
considered protective footwear and is prima facie classifiable
under subheading 6402.91.90, HTSUSA.
-5-
It is our opinion that the boot and the two liners meet the
criteria set forth above for being considered a set for tariff
purposes. Since we have concluded that the boot and the liners
constitute a set for tariff purposes, it is necessary to
determine which component of the set imparts the essential
character thereto. The relevant Explanatory Note for GRI 3(b),
HTSUSA, states as follows:
VIII The factor which determines essential character will
vary as between different kinds of goods. It may,
for example, be determined by the nature of the
material, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the
use of the goods.
Inasmuch as we are unable to ascertain whether the boot
should be classified as protective footwear or as footwear
other than protective footwear, we must classify the boot under
the subheading which occurs last in numerical order following
GRI 3(c) and 6, HTSUSA. In this instance that subheading is
6402.91.90, HTSUSA.
HOLDING:
The mountaineering boot represented by the sample is
classifiable under subheading 6402.91.90, HTSUSA, as other
footwear with outer soles and uppers of rubber or plastics,
covering the ankle, having a foxing-like band, other, other,
valued over $12 per pair. The applicable rate of duty for this
provision is 20 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc Eric Francke NY Seaport
1cc Legal Reference
cahill library/peh
088043