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NY J83267




May 2, 2003

CLA-2-64:RR:NC:TA:347 J83267

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Mr. John B. Pellegrini
Ross & Hardies
65 E. 55th Street
New York, NY 10022-3219

RE: The tariff classification of footwear from China, Indonesia and Thailand.

Dear Mr. Pellegrini:

In your letter dated April 9, 2003, on behalf of your client Adidas America, Inc., you requested a tariff classification ruling.

The submitted samples, you state, are two half pairs of athletic-type basketball shoes with rubber/plastic uppers and outer soles, and they cover the ankle. Both shoes have lace closures, padded textile tongues and functionally stitched rubber/plastic uppers with an external surface area of over 90% rubber/plastics when all accessories and reinforcements are included. The two shoes are identified as Model G6702 with blue colored lateral and medial upper areas and Model G6711, with the gold colored outside mid-upper area.

In both shoe models, the cemented-on outsole overlaps the shoe’s upper at the sole by at least 1/4-inch or more only in the front and at the back behind the heel. You state in your letter and based on visual measurement we agree that the areas of overlap represent only approximately 30 percent of the circumference of both these shoes. However, in the case of Model G6711, with the gold color plastic area at the sole included, an idependent lab report found that the degree of encirclement is 47.25 percent. There is no lab report provided on Model G6702, but you state in your letter that when the blue colored areas are included, the degree of encirclement exceeds 60 percent. It is your opinion that neither the blue areas on Model G6702 nor the gold area on Model G6711 constitute foxing-like bands since these band-like areas do not overlap the upper but are actually parts of the upper.

Examination of the various plastic external surface area material parts that are functionally sewn and cemented together to form the upper reveals that on Model G6702 the blue colored areas overlay and will cover a black non-woven lining material. To illustrate this fact, you have provided a sample of a Model G6607 upper, which is unformed, open-bottomed but otherwise almost identical in construction as the upper on this instant sample shoe. You state that the black textile side panels will be replaced with a non-woven lining material on the finished Model G6702 basketball shoe. In the Model G6711 shoe, the gold colored plastic material already covers lining material.

Material on the surface area of the upper, which covers lining material that is not a viable upper material, is considered part of the external surface area of the upper. Components that are considered a part of the external surface area of the upper are generally not treated as foxing-like bands since a foxing-like band must overlap the upper but the “upper” cannot overlap itself. We agree with you that for this reason, the blue colored areas in Model G6702 and the gold colored area on the lateral side of Model G6711 do not constitute foxing-like bands. With these areas excluded, the degree of encirclement by any overlap of 1/4-inch or more at the sole on both the subject shoes is less than 40 percent, which is not considered to be a substantial encirclement. Therefore, the instant footwear does not exhibit a foxing or a foxing-like band.

The applicable subheading for both these basketball shoes, identified as Model G6702 and Model G6711, will be 6402.91.40, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which both the upper's and outer sole's external surface is predominately rubber and/or plastics; which is not “sports footwear”; which covers the ankle; in which the upper's external surface area measures over 90% rubber and/or plastics (including any accessories or reinforcements); which does not have a foxing-like band; and which is not designed to be a protection against water, oil or cold or inclement weather. 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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