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HQ 966900

April 13, 2004

CLA-2 RR:CR:TE 966900 KSH


TARIFF NO.: 6402.91.90

John B. Pellegrini, Esq.
McGuireWoods LLP
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219

RE: Reconsideration of NY K80149; Classification of footwear from China

Dear Mr. Pellegrini:

This letter is in response to your request of January 13, 2004, on behalf of your client, Reebok, for reconsideration of NY K80149, dated November 12, 2003, as it pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of athletic footwear from China. A sample athletic shoe was submitted with your request. In preparing this decision, consideration was given to the conference held between you and members of my staff on March 31, 2004.


In New York Ruling Letter (NY) K80149, dated November 12, 2003, athletic footwear identified as “ATR Flare”

The “ATR Flare” has been renamed “Two Step”. We will refer to the sample as “Two Step”. was classified in subheading 6402.91.90, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Valued over $12/pair.” The determination was based upon an examination of a sample identified as the “ATR Flare” and a finding that the shoes possessed a foxing-like band, i.e., the shoe’s unit molded sole vertically overlapped the upper by ¼ of an inch or more and the overlap substantially encircled the shoe.

The submitted sample (identified as “Two Step”) is a black and white lace-up athletic shoe which covers 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 an 1/4 of an inch when measured on a vertical plane. The shoe also has a concealed EVA midsole.


Whether the “Two Step” is classified in subheading 6402.91.90, HTSUSA; or in subheading 6402.91.40, HTSUSA.


Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

Explanatory Note (D) to Chapter 64, HTSUS, defines upper, in part, as:
the part of the shoe or boot above the sole. However, in certain footwear with plastic moulded shoes or in the shoes of the American Indian moccasin type, a single piece of material is used to form the sole and either the whole or part of the upper, thus making it difficult to identify the demarcation between the outer sole and the upper. In such cases, the upper shall be considered to be that portion of the shoe which covers the sides and top of the foot.

On November 17, 1993, CBP published Treasury Decision (T.D.) 93-88, dated October 25, 1993, in the Customs Bulletin, Volume 27, Number 46. In T.D. 93-88, we defined upper as follows:

The “Upper” is part of the shoe above the separate sole or that portion of the shoe which covers the sides and tops of the foot if there is no separate sole.

This second definition applies to certain footwear like molded rubber/plastic clogs or leather moccasins where the same material forms the sole and at least part of the upper, and no line of demarcation between the upper and sole is evident.

“Outer Sole” is defined in T.D. 93-88 as:
that part of the footwear (other than a separate heel) in contact with the ground when in use. If it has no separate “outer sole”, e.g., it has a one piece clog bottom, the material of the “outer sole” is the material of the shoe’s lower surface.

In T.D. 93-88, CBP also 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.

You argue that the outer sole overlaps the mid-sole but does not overlap the upper. Therefore, you assert that the “Two Step” does not have a foxing-like band. In support of this argument you cite to the Brooks Shoe Clinic and Technical Manual (1985), which defines “outsole unit” as the combination of the outsole, midsole and wedge. Accordingly, you maintain that the upper does not include any part of the upper material that conceals the mid-sole, which constitutes part of the “outsole unit”, and must be disregarded in determining whether the outer sole overlaps the upper. You also cite to HQ 068764, dated August 14, 1981, which states in part:

To be considered a “foxing” in the present situation the bottom overlap must extend higher than the point at which the upper turns under the insole, because that is the point at which we measure the exterior surface area of the upper.

Because the upper of the “Two Step” turns under the mid-sole and not the insole, you state that the overlap covers the mid-sole and does not extend to the insole line.

In accordance with EN (D) to Chapter 64, HTSUS, the upper is that portion of the “Two Step” above the sole. We note that the EN and T.D. 93-88 do not state that the upper is that portion of the shoe above the “outsole unit”. However, we also note that the HTSUS does not provide a definition of what constitutes the sole. In HQ 084131, dated June 13, 1989, we considered the definition of “sole” as provided in the Dictionary of Shoe Industry Terminology, Footwear Industries of America (1986), which defined sole as:

The bottom piece or pieces of leather or other material of footwear. When used as a collective term, it includes the complete bottom part of the shoe, except the heel.

In HQ 084049, dated June 09, 1989, we examined an over-the-ankle athletic shoe with a molded plastic mid-sole containing plastic air cylinders that were visible from the exterior, and a molded rubber/plastic outer sole. We observed that with respect to the construction of the shoe at issue in that case, the midsole and the outsole functioned as a unit that formed the "bottom" of the shoe. Unlike the shoe in HQ 084049, the “Two Step’s” mid-sole and outer sole do not function as a unit that forms the bottom or sole of the shoe. Visual inspection of a cross section of the shoe reveals that the upper is lasted under the mid-sole and is cemented to the top of the outer sole. As such the mid-sole and outer sole are not affixed together to form a unit. The intervening upper material highlights the fact that they are separate components. Thus, the bottom or sole of the “Two Step” consists only of the outer sole. Moreover, the “Two Step” is not substantially similar to the shoe at issue in HQ 068764 as the shoes therein did not have mid-soles and the upper turned under the insole. The “Two Step” has a separate outer sole that overlaps the upper by ¼ inch or more and the overlap extends around a substantial portion of the shoe’s perimeter. The shoe therefore possesses a foxing-like band.


The sample identified as the “Two Step” is classified in subheading 6402.91.90, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Valued over $12/pair." The general column one duty rate is 20 percent ad valorem.

NY K80149, dated November 12, 2003, is hereby affirmed.


Myles B. Harmon, Director
Commercial Rulings Division

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