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NY L84131




April 26, 2005

CLA-2-64:RR:NC:247: L84131

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.18

Mr. Roger Crain
Customs Science Services, Inc.
11901 Reynolds Avenue
Potomac, MD 20854-3334

RE: The tariff classification of footwear from Taiwan.

Dear Mr. Crain:

In your letter dated April 13, 2005, you requested a tariff classification ruling on behalf of AND1, for a basketball shoe identified as “Fresh Air” (Pattern No. 40604-IL). You state that the shoe is a man’s below-the-ankle athletic shoe that has an upper & outer sole of rubber/plastics; is neither “sports” nor “protective” footwear; and does not have a foxing-like band. The major design feature of the “Fresh Air” style consists of panels of compact plastic, one on each quarter & one wrapping the heel, that are perforated with a square array of closely spaced holes. The holes are about 3.8 millimeters (mm) in diameter and 5mm apart on centers. The compact plastic panels are about 3mm (about one-eighth inch) thick, so the silver-colored textile lining material under the panels is only faintly visible through the perforations when viewed straight-on but cannot be seen at all when viewed at an angle. It is your opinion that this “lining” material is neither visible nor tactile on the external surface of the shoe, and therefore is not considered an “accessory.” You have provided external surface area measurements for the upper both including and excluding the textile mesh. In both cases, the external surface area of the upper is over 90 percent rubber/plastics including accessories or reinforcements.

HQ 073043 dated March 28, 1984, dealt with the classification of 2 styles of women's shoes. The first style was a women's plastic high-heel shoe with an open toe, an open back and an ankle strap. The shoe had diamond-shaped stripping cut-outs (interstices) on the vamp. Underlying the stripping and vamp interstices was a nylon mesh material. The second style was a women's high-heel, closed toe, closed back and slip-on plastic fashion pump with an open grid-like plastic stripping upper. Underlying the open grid interstices was a nylon mesh material. With respect to the mesh materials, HQ073043 stated the following:

..., it is our observation that the exposed portions are part of the exterior surface area of the uppers. A lining presupposes a material or something which is lined. Here the interstices in both samples display so-called linings which actually line nothing. At the interstices the nylon mesh constitutes both the upper and the exterior surface area of the upper.

Therefore, HQ 073043 did not consider the mesh material to be a liner and it was not excluded when the external surface area of the upper was determined. It is the opinion of this office that the rationale of HQ 073043 also applies here. We feel that the textile “lining” material is visible and is a constituent part of the upper.

The applicable subheading for the “Fresh Air” (Pattern No. 40604-IL), will be 6402.99.18, Harmonized Tariff Schedule of the United States, which provides for footwear with outer soles and uppers of rubber/plastics, not covering the ankle, other, having uppers of which over 90 percent of the external surface area (including accessories or reinforcements) is rubber or plastics, not having a foxing or foxing-like band and not protective. The general rate of duty will be 6 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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