The tariff classification of footwear from China or Vietnam.

N031217 July 10, 2008 CLA-2-64:RR:NC:SP:247 CATEGORY: Classification TARIFF NO.: 6404.11.9020 Mr. Stephen S. Spraitzar Law Offices of George R. Tuttle One Embarcadero Center, Suite 730 San Francisco, CA 94111 RE: The tariff classification of footwear from China or Vietnam. Dear Mr. Spraitzar: In your letter dated June 16, 2008, on behalf of your client ASICS American Corporation of Irvine, California, you requested a tariff classification ruling. The submitted half pair sample, identified the “Gell-Kushon,” style #09B-T-68-11, is described as a men’s lace-up athletic type shoe with a predominately textile material upper that does not cover the ankle. The shoe has a rubber/plastics outsole that incorporates a rubber/plastic midsole cushioning feature with molded edges which overlap the upper around the back of the heel and also along the shoe’s outside back quarter. You have provided a sample of this shoe with the outsole component separated from its upper and an independent lab report stating that only 26.29% of the lower perimeter of the upper had an overlap of ¼-inch or greater. You also state that this shoe will be valued at over $12.00 per pair. In your letter you request that we examine the sample submitted together with the laboratory report findings to determine if the submitted sample shoe is considered to have a foxing-like band. T.D. 83-116 set forth guidelines relating to the characteristics of foxing and a foxing-like band. Briefly and in pertinent part, a “foxing-like band” is a band around the lower part of the upper that has either been attached at the sole or is part of the same molded piece of rubber or plastic which forms the sole. Unit molded footwear 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. A foxing-like band must also encircle or substantially encircle the shoe. T.D. 92-118 set forth the guideline that the 40/60 rule would apply to assist in a determination of whether there is “substantial” encirclement. Generally, under the 40/60 rule, an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute a “substantial” encirclement and so there is no foxing or foxing-like band. Encirclements of between 40 and 60 percent may or may not constitute a foxing or a foxing-like band depending on whether the band functions or looks like foxing. Encirclements exceeding 60% of the perimeter of the shoe by the band is always considered substantial encirclement. Based on your submitted lab measurement findings that a vertical overlap of the upper of ¼-inch or more accounts for only a 26.29% encirclement on this shoe and our examination of its separated sole component, which we found not to have any measurable overlap of the upper around most of the front lower perimeter, we do not consider the submitted sample shoe to have a foxing-like band. We are unable to respond to your request for a determination that a similarly constructed shoe, with an upper of over 90% rubber or plastics materials and with presumably the same outsole configuration, will also lack a foxing-like band. When an actual sample of your proposed shoe style with an upper of rubber/plastic materials is available, it can then be submitted for a classification ruling. The applicable subheading for the men’s athletic shoe, identified “Gell-Kushon,” style #09B-T-68-11, will be 6404.11.9020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for footwear, in which the upper’s external surface is predominately textile materials (excluding accessories and reinforcements); which has outer soles of rubber or plastics; which is tennis shoes, basketball shoes, gym shoes, training shoes and the like; and which is valued over $12 per pair. The rate of duty will be 20% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. 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, National Commodity Specialist Division