CLA-2 OT:RR:CTF:TCM H237647 GA
Mr. Michael S. O’Rourke
Rode & Qualey
55 West 39th Street
New York, NY 10018
RE: Revocation of NY N219385; Classification of footwear from China
Dear Mr. O’Rourke:
This letter is in response to your request of December 11, 2012, on behalf of your client, Magpie Consulting LLC d/b/a SWYT Culture, for reconsideration of NY N219385, dated June 20, 2012, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of three styles of slip-on footwear from China. The National Commodity Specialist Division (NCSD) forwarded your request to this office for a response. Two samples (identified as “Crushed Velvet” and “Patent”) of the merchandise were submitted with your request and will be returned.
In NY N219385, U.S. Customs and Border Protection (CBP) determined that style “Patent” was classified in subheading 6402.99.3165, HTSUSA, which provides for, Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and 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): Other: Other: Other: For women: Other.”
In NY N219385, CBP also determined that styles “Crushed Velvet” and “Dead Tiedye” were classified in subheading 6404.19.3960, HTSUSA, which provides for, “Footwear with outer soles of rubber, plastics, leather, or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other: Other: For women.”
We have reviewed NY N219385 and found it to be incorrect for the reasons set forth below.
On July 1, 2015, 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, notice of the proposed action was published in the Customs Bulletin Vol. 49, No. 26. No comments were received in response to this notice.
FACTS:
In NY N219385, style “Patent” was described as follows:
The submitted half-pair sample identified as style “Patent,” is a women’s closed toe/heel slip-on “ballet flat” with a rubber or plastics outer sole and upper. There is a small section of elasticized material at the rear of the topline of the shoe which helps keep it snug to the wearer’s foot. The shoe is neither “protective” nor does it have a foxing or a foxing-like band.
In NY N219385, styles “Crushed Velvet” and “Dead Tiedye” were described as follows:
The submitted half-pair samples identified as styles “Crushed Velvet” and “Dead Tiedye” are women’s closed toe/heel slip-on “ballet flats” with rubber or plastics outer soles and textile materials uppers. There is a small section of elasticized material at the rear of the topline of each shoe which helps them snug to the wearer’s foot. The shoes are neither “protective” nor do they have a foxing or a foxing-like band.
Samples have been submitted for our examination. The styles have molded rubber/plastics outer soles that overlap the uppers by 1/4 inch, or more, measured on a vertical plane. The overlap substantially encircles the perimeter of the shoes over 60 percent. The value of the footwear is from $7.20 - $8.50.
ISSUE:
What is the proper classification of the footwear?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under considerations are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Other footwear
6402.99 Other:
Other:
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 footwear having a foxing or foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather):
Other:
6402.99.31 Other
Other:
For women:
6402.99.3165 Other
* * *
Other:
Other:
6402.99.80 Valued over $6.50 but not over $12/pair
* * * * *
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 Other:
Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
Other:
6404.19.39 Other
Other:
6404.19.3960 For women
* * *
Other
Valued over $6.50 but not over $12/pair:
6404.19.89 Other
Counsel argues that NY N219385, dated June 20, 2012, is inconsistent with an Informed Compliance Notice issued by a CBP port, which described the footwear as having foxing-like bands. It has submitted samples for our examination.
Subheadings 6402.99.3165 and 6404.19.3960, HTSUSA, provide for footwear without foxing or foxing-like bands. The issue we must address is whether the footwear in question is constructed with foxing-like bands. The term “foxing-like” is not defined in the HTSUS or the Explanatory Notes. On November 17, 1993, CBP published Treasury Decision (T.D.) 93-88, dated October 25, 1993, in the Customs Bulletin, Vol. 27, No. 46. In T.D. 93-88, CBP stated that the typical “foxing band” was “a rubber tape, about 1 inch high 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outersole ….” CBP 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, CBP set forth guidelines relating to the characteristics of foxing and foxing-like bands. CBP 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 25, 1992, Custom Bulletin Vol. 26, No. 48, CBP set forth its position regarding the interpretation of the term “substantially encircle” as it relates to “foxing and foxing-like bands.” In so doing, CBP formally adopted the “40-60 rule,” which is the measurement used by CBP to assist in making a determination regarding encirclement. Generally, under this rule, an encirclement of less than 40 percent of the perimeter of the footwear by the band does not constitute foxing or a foxing-like band. An encirclement, of between 40 percent to 60 percent of the perimeter of the footwear by the band, may or may not constitute a foxing or foxing-like band depending on whether the band functions or looks like a foxing. An encirclement of over 60 percent of the perimeter of the footwear by the band is always considered substantial encirclement.
An examination of the samples submitted by counsel reveals that the styles of footwear at issue have molded rubber/plastics outer soles that overlap the uppers by 1/4 inch, or more, measured on a vertical plane. Additionally, and for each style, the overlap substantially encircles the perimeter of the shoe over 60 percent. Accordingly, the instant footwear is constructed with foxing-like bands.
HOLDING:
Pursuant to GRIs 1 and 6, style “Patent” is classified in heading 6402, HTSUS, specifically, in subheading 6402.99.80, HTSUS, which provides for, “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Other: Valued over $6.50 but not over $12/pair.” The column one, general rate of duty is $.90/pr + 20% percent ad valorem.
Styles “Crushed Velvet” and “Dead Tiedye” are classified in heading 6404, HTSUS, specifically, in subheading 6404.19.89, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $6.50 but not over $12/pair: Other.” The column one, general rate of duty is $.90/pr + 20% percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N219385, dated June 20, 2012, is hereby REVOKED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division