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NY J85893




July 21, 2003

CLA-2-64:RR:NC:347:J85893

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

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

RE: The tariff classification of baseball shoes.

Dear Mr. Pellegrini:

In your letter dated June 26, 2003, you requested a tariff classification ruling on behalf of adidas America, Inc. You identify the merchandise which is the subject of this ruling as four baseball shoes with rubber/plastic uppers and outsoles. The shoes are cleated. The shoes are identified as Article Nos. 011239, 011241, 011248 and 011252. You state that the shoes will be produced in a variety of countries including Indonesia, Thailand and the Peoples Republic of China.

All four styles have rubber/plastics cleats molded into the outer soles. These cleats protrude over ¼ inch from the surrounding sole material and would make everyday walking impractical. In this regard, the footwear is considered “sports” footwear.

You describe Article 011239 as a man’s shoe, it is over the ankle and has a textile loop at the top line of the heel. Article 011252 is the same shoe in youth’s sizes. Article 011241 is an oxford height man’s baseball shoe with a kiltie tongue. Article 011248 is the same shoe in youth’s sizes. You state that the uppers of these shoes are over 90 percent rubber/plastic when all accessories and reinforcements are included. You further state that the outsoles overlap the uppers of the subject footwear in varying degrees. In the case of Article Nos. 011239 and 011241, the degree of overlap in excess of ¼ inch is 52 percent. The degree of overlap in Articles 011252 and 011248 is something less than 49.21 percent. You contend that, given the amount and placement of the overlap, it does not substantially encircle the shoes and is therefore not a foxing or foxing-like band.

A foxing may be described as a band, i.e., a strip serving to join, hold together or integrate the sole and the upper of footwear. It may be a thin flat encircling strip, strap, or flat belted material serving chiefly to bind or contain the sole and the upper. A foxing-like band has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. Customs has taken the position that foxing or foxing-like band must encircle or substantially encircle the entire shoe in order to be considered as such.

You reference HQ 955697 dated November 8, 1994 concerning a similar overlap/encirclement situation. This ruling states:

“Our measurement of the sample indicates that there is a 1/4 inch overlap of the upper by the sole of between 43% and 48% of the perimeter of the shoe depending on whether the gaps between the overlaps were included in the measurement. However, it is our assessment that the overlap of the upper which is not readily visible when viewing the shoe from the front is mostly around the front portion of the shoe. Consequently, it is our opinion that the overlap of the upper by the sole in this instance cannot be considered foxing-like because it does not have the same or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.”

The submitted shoe samples have uppers that are overlapped somewhere in between 40/60 percent of their perimeters. This overlap only occurs in the back and rear sides of the shoes. There is no overlap in the toe or forward sides of the shoes. In this regard, despite the overlap being substantial, we agree that the shoe does not have a foxing or foxing-like band due to the placement of the overlap. It does not have the same appearance, qualities or characteristics of the foxing on traditional sneakers or tennis shoes.

The applicable subheading for Article Nos. 011239, 011248, 011248 and 011252 will be 6402.19.15, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear with outer soles and uppers of rubber or plastics, sports footwear, other, having uppers of which over 90 percent of the external surface area including accessories and reinforcements is rubber or plastics, not having a foxing or foxing-like band, not 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, other. The rate of duty will be 5.1 percent 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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