CLA-2 RR:CR:TE 966512 KSH
Mr. Roger J. Crain
Customs Science Services, Inc.
11901 Reynolds Avenue
Potomac, Md. 20854-3334
RE: Reconsideration of NY J82448; Classification of athletic footwear from China; Ruling Correct on Face; New Ruling Based on New Sample Submitted
Dear Mr. Crain: This letter is in response to your request of May 14, 2003, for reconsideration of NY J82448, dated April 11, 2003, as it pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of athletic footwear from China. A sample athletic shoe was submitted at the time of the original determination. A separate sample was submitted with your current request.
FACTS: In New York Ruling Letter (NY) J82448, dated April 11, 2003, athletic footwear identified as “The Quicks Mid Jr., Pattern No. 5082-1EL” and “Too Quicks Mid Jr., Pattern No. 82902-1EL” were classified in subheading 6402.91.90, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Valued over $12/pair,” with a general column one rate of duty of 20 percent ad valorem. The determination was based upon an examination of a sample athletic shoe identified as “The Quicks Mid Jr., Pattern No. 5082-1EL”, and a finding that the athletic shoes possessed a foxing-like band, i.e., the athletic shoe’s unit molded sole vertically overlapped the upper by 1/4 inch or more and substantially encircled the shoe.
With your request for reconsideration, you submitted samples of both the “Quicks Mid Jr., Pattern No. 5082-1EL” and “Too Quicks Mid Jr., Pattern No. 82902-1EL.” Upon review of the record and the descriptions of the sample classified in NY J82448, we find that the ruling is correct on its face.
On August 20, 2003, subsequent to a telephone conference with a member my staff, you advised this office that the Too Quicks Mid Jr. had been redesigned to eliminate the foxing-like band. You submitted a sample of the redesigned “Too Quicks Mid Jr.” for consideration and requested a new binding ruling on that sample as well as the “K-Too Quicks Mid Jr., Pattern No. 82902-1EL” and the “Too Quicks Mid, Pattern No. 82902-1EL”, for which samples were not submitted. This ruling is limited to the classification of the redesigned Too Quicks Mid Jr.
The submitted sample is a red and white lace-up athletic shoe which covers the ankle. The upper is composed of rubber/plastic material which comprises over 90 percent of the external surface area of the upper (ESAU), and textile material comprises 3 percent of the ESAU. The sample has a unit molded sole which overlaps the upper by at least an 1/4 of an inch when measured on a vertical plane.
ISSUE: Whether the redesigned Too Quicks Mid Jr. is classified in subheading 6402.91.90, HTSUSA; or in subheading 6402.91.40, HTSUSA. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. You maintain that the revised Too Quicks Mid Jr. does not have a foxing-like band and should therefore be classified in subheading 6402.91.40, HTSUSA, which provides for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather."
On November 17, 1993, Customs published Treasury Decision (T.D.) 93-88, dated October 25, 1993, in the Customs Bulletin, Volume 27, Number 46.. In T.D. 93-88, Customs stated that the typical "foxing band" was “a rubber tape, about 1 inch high by 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outersole. . . ." Customs stated that the term "foxing-like band" was defined as "a band around a substantial portion of the lower part of the upper which either has been attached (cemented, sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole." In T.D. 83-116, dated June 22, 1983, Customs set forth guidelines relating to the characteristics of foxing and foxing-like bands. Customs noted that 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 outer sole initially meet (measured on a vertical plane), and that if the overlap is less than 1/4 inch, the footwear is presumed not to have a foxing-like band. In T.D. 92-108, dated November 25, 1992, 26 Cust. Bul. No. 48, Customs set forth its position regarding the interpretation of the term "substantially encircle" as it relates to "foxing and foxing-like bands." In so doing, Customs formally adopted the "40-60" rule, which is described as a measurement used by Customs import specialists to assist in making a determination pertaining to encirclement. Generally, under this rule, an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute foxing or a foxing-like band. An encirclement of between 40% to 60% of the perimeter of the shoe by the band may or may not constitute a foxing or a foxing-like band depending on whether the band functions or looks like a foxing. An encirclement of over 60% of the perimeter of the shoe by the band is always considered substantial encirclement. In instances where the overlap of the upper varies, if the importer provides a separate outer sole in conjunction with a sample of the completed shoe, only the overlap of the upper that is ¼ inch or greater will be considered for application of the 40-60 rule. See HQ 088510, dated April 29, 1991.
The extent to which the outer sole of the revised Too Quicks Jr. overlaps the upper by ¼” or more as measured on a vertical plane is approximately 29% of the perimeter, which does not constitute substantial encirclement. Accordingly, the sample athletic shoe, identified as the “Too Quicks Mid Jr.,” does not possess a foxing-like band. HOLDING: The subject redesigned sample, identified as the “Too Quicks Mid Jr.,” is classified in subheading 6402.91.4010, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Having
uppers of which over 90 percent of the external surface area...is rubber or plastics…, For men: Other." The general column one duty rate is 6 percent ad valorem.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division