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NY H87364




February 22, 2002

CLA-2-64:RR:NC:TA:347 H87364

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Mr. Eric Hale
Nike USA, Inc.
One Bowerman Drive
Beaverton, OR 97005

RE: The tariff classification of footwear from China

Dear Mr. Hale:

In your letter dated January 28, 2002 you requested a tariff classification ruling.

You have submitted two sample shoes, model #BBC101 Air Ultraposite Low, which you state is a high performance basketball shoe and which we note has laces, and model #BBC102 Air Ultraposite Slide, which is a slip-on. Both shoes have stitched together rubber/plastic uppers that do not cover the wearer’s ankle. Both shoes have rubber/plastic outer soles that overlap the upper by ¼-inch or more in the toe area, on the inside forward portion toward the ball of the foot and at the back of the heel. Both shoes also have very similar midsole components, which you identify as shank pieces or plates, which also overlap the upper by ¼-inch or more. There is also a triangular shaped, semi-rigid urethane plastic heel piece, approximately 3 inches wide and 3 inches high, that is cemented onto and lasted under the uppers of both these shoes. On the slip-on slide model, this heel piece has been cut down to about 2 inches in height and is of an even height with the topline heel portion of this shoe’s upper.

In addition to the two completed shoe model samples, you have also provided a separate sample of the molded rubber/plastic outer sole, the plastic midsole shank piece/plate and the plastic heel piece that are assembled in the finished shoes.

The classification of the two submitted shoe samples, both with plastic uppers and rubber/plastic outer soles, will depend in part on whether or not the shoes have a foxing or a foxing-like band applied or molded at the sole and overlapping the upper. T.D. 83-116 set forth guidelines relating to the characteristics of foxing and a foxing-like band. Briefly and in pertinent part, a “foxing-like band” is a band around the lower part of the upper that has either been attached at the sole or is part of the same molded piece of rubber or plastic which forms the sole. 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. A foxing-like band must also encircle or substantially encircle the shoe. T.D. 92-118 set forth the guideline that the 40/60 rule would apply to assist in a determination of whether there is “substantial” encirclement. Generally, under the 40/60 rule, an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute a “substantial” encirclement and so there is no foxing or foxing-like band. Encirclements of between 40 and 60 percent may or may not constitute a foxing or a foxing-like band depending on whether the band functions or looks like foxing. Encirclements exceeding 60% of the perimeter of the shoe by the band is always considered substantial encirclement. Finally, Customs rulings and court decisions have also held that gaps in a “foxing-like” band are permissible provided that the band still substantially encircles the perimeter of the shoe.

On the instant samples we have determined that an overlap of the upper by ¼ inch or more, is exhibited around the toe, the heel and on the inside forward portion near the ball of the foot by the molded rubber/plastic outsole component and with the two, ¼ inch or higher areas of overlap by the midsole “shank piece” also included, these shoes can be seen to posses some foxing-like band characteristics. Taken all together, the total overlap of the upper at the sole by ¼ inch or more accounts for an encirclement of only approximately 38% of the perimeter of the shoes. Since an encirclement of less than 40% of the perimeter does not constitute a “substantial” encirclement, based on the 40/60 rule, these shoe models do not have foxing-like bands. We note that the separate plastic heel piece overlay at the back was not considered to be a foxing-like band component. This upper surface area external stiffener piece rises up as high as 3 inches on the upper surface and is overlapped externally by the molded rubber/plastic outer sole.

The applicable subheading for both these shoes, identified as model #BBC101 Air Ultraposite Low and model #BBC102 Air Ulraposite Slide, will be 6402.99.18, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which the upper’s external surface area is over 90% rubber or plastics (including any accessories or reinforcements); in which the outer sole’s external surface is predominately rubber and/or plastics; which is not “sports footwear”; which does not have a foxing-like band; and which does not cover the ankle. The rate of duty will be 6% ad valorem.

We are returning the samples as you requested.

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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