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NY H86034




January 7, 2002

CLA-2-64:RR:NC:TA:347 H86034

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.19.50 ; 6402.19.70

Mr. John B. Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55 St.
New York, NY 10022-3219

RE: The tariff classification of footwear from China

Dear Mr. Pellegrini:

In your letter dated December 6, 2001, on behalf of your client Elan-Polo, you requested a tariff classification ruling.

The submitted half pair sample, identified as “Pattern Douty” which you state is a woman’s baseball shoe complete with rigid screwed-on plastic cleats. The shoe does not cover the ankle and has a functionally stitched together plastic upper, a six-eyelet lace closure and a textile tongue. The upper, you indicate, also has textile topline piping and some textile embroidery at the back of the heel, but as you state, these textile components represent less than 10 percent of the external surface area of the upper. This baseball shoe also has a rubber/plastic outer sole and a rubber/plastic midsole which overlaps the upper.

The rubber/plastic midsole/outer sole combination bottom with cleats overlaps the upper at the sole by varying heights that range from just over 1/16-inch near the front and toes to as much as ½-inch at the sides (both on the inside and outside facings) and around the back at the heel. You have provided the separate detached plastic bottom component portion of this “sport” shoe, and by your measurement you indicate that approximately 54 percent of the perimeter of this shoe’s upper has a foxing-like overlap of ¼-inch or more, with no overlap in the front of the shoe. By our approximate measurements we found some overlap around most of the lower perimeter of this shoe and we have also measured the ¼-inch or more height overlap of the upper to account for at least as much as a 55% encirclement. The fact that the height of a ¼-inch or more overlap only accounts for about 55% of an almost complete but varying height encircling overlap of the upper at the sole in the construction of this shoe will not negate our finding that this shoe has a foxing-like band. We do not agree with you that there is no overlap in the front of the shoe. There are wavy foxing-like overlaps of the upper on both the outside and the inside quarters that are readily evident close to the toe, even when the shoe is viewed only from the front. Based on the guidelines laid out in T.D. 92-108 under the “40-60” rule, an encirclement of between 40 and 60 percent 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. It is our determination that in both look and function, this shoe readily exhibits the characteristics of and does have a foxing or a foxing-like band that encircles, or “substantially” encircles the perimeter of the shoe. Since you have not provided us with a value for this shoe, we will presume that it will be valued over $3 but not over $12 per pair.

Therefore, the applicable subheading for the baseball shoe, identified as “Pattern Douty” will be 6402.19.50, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which both the upper’s and the outer sole’s external surface is predominately rubber and/or plastics; which is “sports footwear” other than golf shoes; in which the upper’s external surface area is over 90% rubber or plastics (including any accessories or reinforcements) which has a foxing or a foxing-like band; and which is valued, we presume, over $3 but not over $6.50 per pair. The rate of duty will be 76 cents per pair and 32% ad valorem. If valued over $6.50 per pair but not over $12, the applicable subheading will be 6402.19.70, HTS and the rate of duty will be 76 cents per pair plus 17% ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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