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NY I88613




December 9, 2002

CLA-2-64:RR:NC:TA:347 I88613

CATEGORY: CLASSIFICATION

TARIFF NO. 6404.11.50, 6404.19.50, 6404.19.20

Mr. Adam Jackson
Romika USA, Inc.
8730 NW 36th Avenue
Miami, FL 33147

RE: The tariff classification of footwear from China.

Dear Mr. Jackson:

In your letter dated November 19, 2002 you requested a classification ruling for four styles of footwear to be imported under different scenarios. You have submitted samples of all four items which you identify as follows:

Style Y-9023: Textile upper with injected rubber sole. Ex-factory cost less than $3.00 Style W-9257: Synthetic upper with injected rubber sole. Ex-factory cost less than $3.00 Style G-9068: Synthetic upper with injected P.V.C. sole. Ex-factory cost less than $6.00 Style Y-9032: Synthetic upper with felt lining. Injection-molded to P.V.C. sole. Ex-factory cost less than $6.00

Style Y-9023 is a child’s “athletic” shoe with a textile upper and outer sole of rubber or plastics material. The shoe does not cover the ankle and is secured to the foot by means of a lace closure system. The unit molded outer sole overlaps the upper and is a foxing or foxing-like band. The applicable subheading for style Y-9023 will be 6404.11.50, Harmonized Tariff Schedule of the United States, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of textile materials, tennis shoes, basketball shoes, training shoes, gym shoes and the like, other, valued not over $3/pair. The rate of duty will be 48 percent ad valorem.

Style W-9257 is a child’s or ladies shoe with an outer sole of rubber or plastics and an upper of textile material. The shoe does not cover the ankle and is secured to the foot by means of a lace closure system. The unit molded outer sole overlaps the upper and is a foxing or foxing-like band. The applicable subheading for style W-9257 will be 6404.19.50, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of textile materials, other, other, valued not over $3/pair. The rate of duty will be 48 percent ad valorem.

Style G-9068 and style Y-9032 are children’s cold weather boots with outer soles of rubber or plastics and uppers of textile materials. The boots cover the ankle but not the knee. Style G-9068 is fleece lined and trimmed and secured by means of a hook and loop closure. Style Y-9032 is lined with felt material and has a lace closure system. The applicable subheading for style G-9068 and Y-9032 will be 6404.19.20, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of textile, other, 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. The rate of duty will be 37.5 percent ad valorem.

You state that you are planning to import these shoes into the United States, under three potential scenarios;

Complete shoes imported from China.
Shoes assembled in Mexico with uppers from non-NAFTA country. Non-NAFTA content represents less than 40% of the total value. Shoes assembled in CBI country with uppers from neither NAFTA nor CBI country. Non-NAFTA/non-CBI contents represent less than 40% of the total value.

You have not provided this office with information relating to the manufacturing process to be performed in Mexico other than to say that shoes will be assembled in Mexico with uppers from non-NAFTA country. Non-NAFTA content represents less than 40% of the total value.

The North American Free Trade Agreement, (NAFTA) Annex 401, Chapter 64, provides that a change to headings 6401 through 6405 from any heading outside that group, except from subheading 6406.10, (emphasis added), provided there is a regional value content of not less than 55 percent under the net cost method is needed for NAFTA eligibility. Subheading 6406.10 (HTS) provides for parts of footwear, uppers and parts thereof. Since the uppers originate in a non-NAFTA country, footwear produced in a NAFTA country with these uppers is not eligible for NAFTA duty preference upon importation into the United States.

You have also not provided this office with information relating to the manufacturing process to be performed in an unnamed CBI country other than to say that shoes will be assembled in CBI country with uppers from neither NAFTA nor CBI country. Non-NAFTA/non-CBI contents represent less than 40% of the total value.

Section 222 of the Customs and Trade Act of 1990 (Public Law 101-382) amended U.S. Note 2, Subchapter II, Chapter 98, HTS, to provide for the duty-free treatment of articles (other than textile and apparel articles, and petroleum and petroleum products) which are assembled or processed in a Caribbean Basin Economic Recovery Act (CBERA) beneficiary country wholly (emphasis added) of fabricated components or ingredients (except water) of U.S. origin. U.S. Note 2(b) subchapter II, Chapter 98 (HTS) provides as follows:

No article (except a textile article, apparel article or petroleum, or any product derived from petroleum, provided for in heading 2709 or 2710) may be treated as a foreign article, or as subject to duty, if—
the article is—
assembled or processed in whole of fabricated components that are a product of the United States, or/and
processed in whole of ingredients (other than water) that are a product of the United States, in a beneficiary country, and
neither the fabricated components, materials or ingredients, after exportation from the United States, nor the article itself, before importation into the United States, enters the commerce of any foreign country other than a beneficiary country.

Since the finished footwear is not assembled or processed wholly of fabricated components or ingredients (except water) of U.S. origin, it is not eligible for duty free treatment upon importation into the United States.

The submitted samples are not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

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

A copy of this ruling letter 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 this ruling, contact National Import Specialist, Richard Foley at (646) 733-3042.

Sincerely,

Robert Swierupski
Director,

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