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HQ 964989




May 17, 2002

CLA-2 RR:CR:TE 964989 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.7060

Robert L. Eisen, Esquire
Coudert Brothers
114 Avenue of the Americas
New York, New York 10036-7703

RE: Reconsideration of NY G85394; Soles which Overlap Upper; Not "Mock," "Imitation," or "Fake" Welt; Not Foxing-like Band; T.D. 93-88; T.D. 83-116

Dear Sir:

This is in response to your request dated April 24, 2001, on behalf of your client, Kenneth Cole Productions, L.P., for reconsideration of New York Ruling Letter (NY) G85394, dated January 8, 2001, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a women's shoe (with textile upper) made in China. A sample of an open heeled shoe said to be similar to the one at issue (which had a closed heel) has been submitted with the request. We regret the delay in responding.

FACTS:

In NY G85394, the footwear at issue was identified by style name "You're The One" and by style number 70274. The sample examined prior to issuance of the NY ruling was described as having an upper and outer sole of rubber/plastics, a closed toe and heel, and a button closure on the upper. The ruling had been requested for the sample shoe with the plastic upper, and for the identical style of shoe possessing an upper of textile materials. A swatch of the material to be used for the shoe with the textile upper was submitted at that time. That version of the shoe (the one at issue in this reconsideration) was classified in subheading 6404.19.70, 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 $3 but not over $6.50/pair: Other."

The original requester maintained that the strip applied to the edge of the unit molded sole was a "mock welt" intended only to give the appearance of a welt, and that the strip did not constitute a foxing-like band. Customs found that the rubber/plastic strip did not resemble a "mock" or "imitation" welt, that the separately applied strip comprised an integral part of the sole which, whether or not deemed to be a foxing-like band, overlapped the upper. The strip on the edge of the sole of the sample shoe currently available (a women's size six) overlaps the upper by approximately one eighth (1/8) of an inch (measured on a vertical plane) where the upper and the outsole initially meet. The strip overlaps the upper at the toe and each front side of the shoe, extending along approximately 55 percent of the shoes perimeter.

ISSUE:

Whether women's shoe style "You're The One" (style number 70274) is properly classified in subheading 6404.19.70, HTSUSA.

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.

You essentially contend that the plastic strip is "laid-on" as an "imitation welt" which has not been engineered as a part of the sole's mold, that imitation or fake welts cannot be considered as a part of the sole which overlaps the upper, and that the strip cannot be considered foxing or a foxing-like band. You cite to several Customs rulings which recognize the existence of imitation welts, and submit the statements of several individuals involved in technical aspects of shoemaking who maintain that the plastic strip constitutes an imitation welt that is not a functional part of the sole. You therefore assert that the shoe is properly classified in subheading 6404.19.6060, HTSUSA, the provision 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 $3 but not over $6.50/pair: Having soles (or mid-
soles, if any) of rubber or plastics which are affixed to the upper exclusively with an adhesive (any mid-soles also being affixed exclusively to one another and to the sole with an adhesive); the foregoing except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear with soles which overlap the upper other than at the toe or heel, For women. [Emphasis added.]

Chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, Customs published Treasury Decision (T.D.) 93-88, dated October 25, 1993, which contains certain footwear definitions used by Customs import specialists to classify footwear. The definitions were provided merely as guidelines and, although consulted here, are not to be construed as Customs rulings. In pertinent part, the typical “foxing band” was said to be “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 outer sole.” 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.”

On May 23, 1983, Treasury Decision 83-116, dated May 6, 1983, was published in the in the Federal Register (48 FR 22904), and contains Customs issuance of guidelines relating to the characteristics of foxing and foxing-like bands as an aid to Customs officers in classifying specific footwear constructed with foxing. We 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 outsole 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. The size and intended user of footwear, however, also affect determinations as to whether the overlap of a unit-molded sole constitutes a foxing or foxing-like band. In Headquarters Ruling Letter (HQ) 087098, dated June 12, 1990, Customs ruled that children's shoes having an overlap of 1/8 of an inch or more, and infants' shoes having an overlap of 1/16 of an inch or more, were considered to have a foxing-like band. In HQ 088510, dated April 29, 1991, Customs re-examined the extent of overlap on footwear for infants and children, adopting the position that infants' shoes having an overlap of 1/8 of an inch or more, and children's shoes having an overlap of 3/16 of an inch or more (around at least 40 percent of their perimeters) may possess foxing-like bands. (See also, HQ 951093, dated May 6, 1992, and HQ 952467, dated March 2, 1994.)

Although the plastic strip at issue here is not part of the same molded piece of rubber/plastics which forms the sole, it has been cemented to, and formed as a unit with, the sole. The strip covers the lower part of the upper and the edge of the outer
sole. It extends along the lower part of the upper for approximately 55 percent of the shoe's perimeter. Because the shoe is a women's shoe, however, and the vertical overlap is less than 1/4 of an inch where the upper and the outsole initially meet (specifically, 1/8 of an inch), we find that the strip does not constitute a foxing or a foxing-like band.

With respect to the significance of whether the strip constitutes an imitation or fake welt in determining whether the sole overlaps the upper, we first look to Additional U.S. Note 1(a) to chapter 64, HTSUSA, which states that, for the purposes of this chapter:

The term “welt footwear” means footwear constructed with a welt, which extends around the edge of the tread portion of the sole, and in which the welt and shoe upper are sewed to a lip on the surface of the insole, and the outsole of which is sewed or cemented to the welt. [Emphasis added.]

In William A. Rossi's The Complete Footwear Dictionary, Second Edition (2000), “welt” is defined, in part, as: "A strip of leather or synthetic material between the edge or crevice of the upper and sole, lying flat on the sole edge, to which both the upper and sole are attached...." Although it is clear that the plastic strip at issue here does not constitute a welt, Rossi's definition of "welt" goes on to describe an "imitation welt," stating that "[s]ome shoes use an imitation welt stitched around the top flat edge of the sole for decorative purposes, but is [sic] not a functional part of the shoe." (Emphasis added.)

In Merriam-Webster's Deluxe Dictionary, Tenth Collegiate Edition (1998), the adverb "around" is defined, in pertinent part, as: "1 a : in a circle or in circumference....2 a : on all or various sides : in every or any direction....b : in close from all sides so as to surround...."

In the footwear definitions of the previously referenced T.D. 93-88 (fully cited above), the definition of "welt" is substantially similar to that provided in Rossi's footwear dictionary above. More pertinent at this point of the analysis, however, is the T.D.'s defining discussion of the term "overlap," which states, in pertinent part:

To determine if the sole does "overlap" the upper....If the sole is not a unit molded sole, but has a separate piece which is attached to the edge of the sole, the sole is presumed to overlap the upper with one exception. That exception is soles which use a fake welt. A fake welt is a strip of plastic which is cemented to the top of the edge of the sole and hugs the upper all around the shoe....Flat soles with fake welt strips cemented on are not considered to "overlap" the upper. [Emphasis added.]

The plastic strip at issue in this case extends along approximately 55 percent of the shoe's perimeter, an extent which does not appear to satisfy the definition of "around." We note that the term "around" is significantly included in the definitions of "welt," "imitation welt," and "fake welt," all of which appear to require that a particular piece of material extend along more than 55 percent of, if not encircle, a shoe's perimeter. In light of the above analysis, we find that the plastic strip at issue does not constitute a "fake welt," an "imitation welt," or a Mock welt," that the strip forms an integral part of the sole, and that the sole overlaps the upper along the sides and toe of the shoe.

HOLDING:

NY G85394, dated January 8, 2001, is hereby affirmed.

The women's shoe with textile upper, identified by style name "You're The One" and by style number 70274, is classified in subheading 6404.19.7060, 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 $3 but not over $6.50/pair: Other, Other: For Women." The general column one duty rate is 90 cents per pair plus 37.5 percent ad valorem.

Sincerely,


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