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HQ 967128




January 18, 2005

CLA-2 RR:CR:TE 967128 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18; 6402.99.80

Ms. Patricia Kittel
Target Customs Brokers, Inc.
Import Dept., TPS-0885
1000 Nicollet Mall
Minneapolis, MN 55403

RE: Modification of NY J87067, dated August 22, 2003; Classification of boy’s athletic footwear

Dear Ms. Kittel:

This letter is in response to your request of April 7, 2004, for reconsideration of New York Ruling Letter (NY) J87067, dated August 22, 2003, as it pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of boy’s athletic footwear from China. The footwear was classified in subheading 6402.99.80, HTSUSA, 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 does not cover the ankle; in which the upper’s external surface area measures over 90% rubber or plastics (including any accessories or reinforcements); which has a foxing or foxing-like band; which is not designed to be a protection against water, oil, or cold or inclement weather; and which is valued over $6.50, but not over $12.00 per pair.” The determination was based upon an examination of a sample identified as Style 4399 and a finding that the shoes possessed a foxing-like band, i.e., the shoe’s unit molded sole vertically overlapped the upper by 3/16 of an inch or more and the overlap substantially encircled the shoe. We have reviewed NY J87067 and found it to be in error as it pertains to the classification of children’s American sizes 11.5 through 13. Therefore, this ruling modifies NY J87067. A sample athletic shoe and outer sole was submitted with your request.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 1993), notice of the proposed modification of NY J87067 was published on November 10, 2004, in Vol. 38, Number 46, of the CUSTOMS BULLETIN. CBP received no comments.

FACTS:

The submitted sample shoe is a black and white lace-up athletic shoe which does not cover the ankle. The upper is composed of rubber/plastic material which comprises over 90 percent of the external surface area of the upper (ESAU). The sample has a unit molded sole which overlaps the upper by at least 3/16 of an inch when measured on a vertical plane. Measurements taken at the ball of the foot evidenced that the vertical overlap was 3/16 of an inch on the lateral side. The sidewalls and toe of the shoe overlap more than 3/16 of an inch. The foxing like band was determined to substantially encircle 58% of the perimeter of the shoe.

ISSUE:

Whether Style 4399 possesses a foxing like band which substantially encircles the entire perimeter of the shoe.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

In T.D. 93-88, dated November 17, 1993, CBP stated that the typical "foxing band" is “a rubber tape, about 1 inch high by 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outersole. . . ." CBP defined the term "foxing-like band" as "a band around a substantial portion of the lower part of the upper which either has been attached (cemented, sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole." In T.D. 83-116, dated June 22, 1983, CBP set forth guidelines relating to the characteristics of foxing and foxing-like bands. CBP noted that unit molded footwear is considered to have a foxing-like band if a vertical overlap of 1/4 of an inch or more exists from where the upper and the outer sole initially meet

(measured on a vertical plane), and that if the overlap is less than 1/4 inch, the footwear is presumed not to have a foxing-like band.

In HQ 087098, dated June 12, 1990, CBP ruled that children's shoes having an overlap of 3/16 of an inch or more and infant's shoes having an overlap of 1/8 of an inch or more should be considered to have a foxing-like band. If the extent of the overlap covers between 40 percent and 60 percent of the perimeter of the shoe, the shoe may possess a foxing-like band. T.D. 92-108, dated November 10, 1992.

In T.D. 92-108, dated November 25, 1992, CBP set forth its position regarding the interpretation of the term "substantially encircle" as it relates to "foxing and foxing-like bands." In so doing, CBP formally adopted the "40-60" rule, which is described as a measurement used by CBP import specialists to assist in making a determination pertaining to encirclement. Generally, under this rule, an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute foxing or a foxing-like band. An encirclement of between 40% to 60% 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. An encirclement of over 60% of the perimeter of the shoe by the band is always considered substantial encirclement. Submission of a separate outer sole in conjunction with a sample of the completed shoe will aid CBP’s consideration of application of the 40-60 rule. However, an outer sole, submitted alone, will not be used to determine whether the foxing like band substantially encircles the perimeter of the shoe.

In your submission you have attached two independent laboratory test results which determined that the percentage of overlap of 3/16 of an inch or greater encircles less than 40% of the perimeter of the shoe. One of the lab results concluded that the foxing like band encircled 37% of the perimeter of the shoe and the other lab tested 3 separate samples which indicated an encirclement of 37.95, 37.31 and 36.78%. You attribute the discrepancy between the independent labs results and CBP results to CBP’s presumed utilization of the high point rule. However, CBP did not employ the high point rule. Rather, the difference in measurements is due to the independent labs disregard for the lip running along the entire perimeter of the sole and its relationship to the upper when both components are joined together. When this portion of the foxing like band is considered the amount of substantial encirclement is 58% of the perimeter of the shoe.

As previously noted, the submitted sample yielded an overlap of at least 3/16 of an inch. However, inasmuch as the submitted sample is a children’s size 13

Additional U.S. Note 1(b) to Chapter 64, HTSUSA, provides: “The term ‘footwear for men, youths and boys’ covers footwear of American youths’ size 11 ½ and larger for males, and does not include footwear commonly worn by both sexes.”, an overlap of ¼ of an inch or more is required to find that the shoe possesses a foxing like band. See T.D. 83-116 which states, in relevant part, that unit molded footwear (i.e., footwear sized 11 ½ and larger) 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. Accordingly, the sample does not have a foxing like band. In contrast, style 4399 in children’s sizes up to and including size 11 do possess a foxing like band which substantially encircles the perimeter of the shoe.

HOLDING:

NY J87067, dated August 22, 2003, is hereby modified.

Style #4399 in sizes up to and including children’s size 11 are classified in subheading 6402.99.80, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Valued over $6.50 but not over $12/pair.” The rate of duty is $.90/pair + 20% ad valorem. Style #4399 in children’s sizes 11.5 through 13 are classified in subheading 6402.99.18, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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): Other.” The rate of duty is 6% ad valorem.

In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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