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HQ 960788




December 8, 2000

CLA-2 RR:CR:TE 960788 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.9060

Ms. Kathy Brennan
Eddie Bauer Incorporated
Post Office Box 97000
Redmond, Washington 98073-9700

RE: Women’s Low Top Trekker; External Surface Area of Upper (ESAU); Note 4 to Chapter 64; High-Tech Sports, USA v. United States, 20 C.I.T. 1046, Slip Op. 96-139 (1996 Ct. Intl. Trade); 958 F. Supp. 637, Slip Op. 97-24, (1997 Ct. Intl. Trade)

Dear Ms. Brennan:

This letter is in response to your request of July 3, 1997, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a women’s shoe manufactured in China. A sample was submitted with your request. We regret the delay in responding.

FACTS:

The sample, identified by item number 020-2888 and described as a women’s low top trekker, is footwear which is intended to be used for everyday walking and which does not resemble athletic footwear such as tennis shoes, gym shoes, training shoes or the like. The outer sole is composed of unit molded rubber and/or plastics. Encircling the entire perimeter of the shoe are two pieces of rubber material described as “counters.” The counters are affixed to the molded sole, apparently by cement, and are sewn to the upper with textile thread. The front counter (also described as a “mudguard” and “mudwall”)
extends around the front and along both sides of the shoe. The front counter is connected to the heel counter by textile thread at the sides of the shoe. The heel counter extends around the rear remainder of the shoe’s perimeter.

The upper is essentially composed of nylon textile material, most of which is visible, but portions of which are covered by the counters, by a plastic collar encircling the ankle area, and by a u-shaped plastic eyelet stay which reinforces the eyelets through which the lace is passed. The bottom part of the textile portion of the upper is turned under and glued to the inner sole. Unlike the textile portion of the upper, the rubber counters are not lasted under and cemented to the inner sole and they appear to provide no support for the wearer’s foot.

ISSUE:

Whether the nylon textile material or the rubber/plastic material predominates as the constituent material of the upper with the greatest external surface area.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Among other merchandise, chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. With respect to uppers which consist of two or more materials, note 4(a) to chapter 64 states that:

The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments.

The EN to chapter 64, HTSUSA, indicate that the constituent material of the outer sole and of the upper, determines classification in headings 6401 to 6405. The EN also provide additional examples of features deemed accessories to, or reinforcements for, the uppers, such as protective or ornamental strips, other ornamentation (e.g., tassels, pompons or braid), laces, and slide fasteners. Heading 6402, HTSUSA, covers “Other footwear with outer soles and uppers of rubber or plastics.” Heading 6404, HTSUSA, covers “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.”

In determining which constituent material of the upper has the greatest external surface area, we first disregard the plastic eyelet stay since it is a reinforcement exemplar named in chapter note 4(a) above. We also consider the plastic collar which encircles the ankle area to be reinforcement due to its similarity to the protective strips mentioned in the EN to chapter 64.

With respect to the rubber counters which partially overlap the textile portion of the upper, we note that prior to the decision in High-Tech Sports, USA v. United States, 20 C.I.T. 1046, Slip Op. 96-139 (1996 Ct. Intl. Trade); 958 F. Supp. 637, Slip Op. 97-24, (1997 Ct. Intl. Trade), Customs had taken the position that the term “accessories and reinforcements” included any material added to an otherwise complete upper material. In High-Tech, however, the Court of International Trade (CIT) concluded that Customs had incorrectly calculated the external surface area of the upper (ESAU) by excluding as “accessories or reinforcements” numerous leather portions that had been added to an otherwise complete upper of Cordura nylon textile materials.

Comparing the characteristics of those leather and textile materials, the CIT observed that “[t]he essential structure of each boot’s upper is derived from its leather components which contribute strength and durability...and provide support to the wearer’s foot and ankle.” “The upper is lasted or fastened to the sole by a cold cement process. The only material intentionally cemented to the sole for purposes of lasting is the leather portion of the upper....The Cordura is specifically not used for strength or structural purposes, except as it may serve to reinforce the leather against certain stretching forces. The Cordura does not serve to last the uppers to the sole of the boot.” The Court went on to find that “[t]he constituent material of the upper of each of the boots at issue...is a combination of Cordura nylon and leather with leather predominating.”

Until the High-Tech decision, Customs calculations of the ESAU had not depended on whether materials overlying an otherwise complete upper were fastened to the sole. See Headquarters Ruling Letter (HQ) 088511, issued April

15, 1992. In this case, although the overlying rubber counter pieces are affixed (apparently cemented) to the sole, they are not the only materials affixed to the sole. The nylon textile materials of this upper – unlike the textile materials of the High-Tech footwear - are turned under and glued to the inner sole. The rubber counters reinforce the joint between the upper and the sole but do not appear to provide support for the wearer’s foot. The counters resemble a foxing or a foxing-like band.

In Treasury Decision (T.D.) 83-116, which was published in the Federal Register May 23, 1983 (48 FR 22904), Customs issued the following guidelines relating to the characteristics of foxing and foxing-like bands as an aid to Customs officers in classifying specific footwear constructed with foxing.

CHARACTERISTICS OF A FOXING

A foxing is a strip of material which is separate from the sole and upper. [Emphasis added.] A foxing secures the joint between the sole and upper. It covers the joint but there may be other footwear with a “foxing under” which does not cover the joint. A foxing must overlap the upper and the overlap must be readily discernible. A foxing is a band, i.e., a strip serving to join, hold together or integrate two or more things . . . a thin, flat encircling strip, strap, or flat belted material serving chiefly to bind or contain something. A foxing must encircle or substantially encircle the entire shoe. A foxing may be attached by cementing, stitching, or vulcanizing. A foxing does not include components known by another name clearly recognized in the trade such as mock welts, toe bumpers, wedge wraps, and platform wraps. However, a mud guard may meet the definition of a foxing. It is usually applied at the sole and folded under at the juncture of the sole and upper and it does extend upward overlapping the upper. It also acts to reinforce or supplement the juncture of the sole and upper.

CHARACTERISTICS OF A FOXING-LIKE BAND

There is no trade understanding or commercial designation for the term “foxing-like band.” 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.

A foxing-like band need not be a separate component. A foxing-like band may or may not secure the joint between the sole and upper. A foxing-like band must be applied or molded at the sole and must overlap the upper. A foxing-like band must encircle or substantially encircle the entire shoe. A foxing-like band may be attached by any means. Unit molded footwear is considered to have a foxing-like band if a vertical overlap of ¼ 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 ¼ inch, such footwear is presumed not to have a foxing-like band.

We find that the rubber counters constitute a foxing which serves to bind, secure, and reinforce the juncture of the sole and upper. The counters overlap the upper and are affixed to the sole but are separate components from both the upper and the sole. It is our determination that, since the counters are separate from the upper, are not the only materials intentionally cemented to the sole, and do not support the wearer’s foot, their surface area cannot be counted as part of the surface area of the upper. It is the nylon textile material, therefore, which is the constituent material having the greatest surface area of the upper.

HOLDING:

The women’s low top trekker, identified by item number 020-2888, is classified in subheading 6404.19.9060, 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: Other: Valued over $12/pair [12 dollars per pair], For women.” The general column one duty rate is 9 percent ad valorem.

Sincerely,


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