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NY K88191

August 27, 2004
CLA-2-64:RR:NC:SP:247 K88191


TARIFF NO.: 6402.91.70

Mr.Randy Scurlock
Innovative Custom Brands, Int’l
1350 Broadway, Suite 1604
New York, NY 10018

RE: The tariff classification of footwear from China

Dear Mr. Scurlock:

In your letter dated August 2, 2004 you requested a tariff classification ruling for a men’s size 9 shoe, identified as “sample 17361.”

The shoe displays the name “Athletech” on a sewn-on label at the top of the shoe tongue and also molded into the bottom of the outer sole. It is an athletic-type shoe that covers the wearer’s ankle. The shoe has a functionally stitched rubber/plastic material upper with a padded tongue, a lace closure and a plastic hook-and-loop ankle strap with plastic buckle. The shoe also has a cemented and sewn-on unit-molded rubber/plastic bottom with sidewalls that overlap the upper around much of the perimeter of the shoe. We have determined that there is a vertical overlap of the upper by the sole of more than ¼-inch around at least 45% of the shoe’s lower perimeter.

The areas of greater than ¼-inch height measured overlap of the upper by the molded rubber/plastic sidewall band of the sole include an approximately 9½-inch long upper material lasting allowance portion around the front by the toes and an approximately 3-inch long upper lasting allowance portion that is also overlapped at the back around the heel. Based on the guidelines laid out in T.D. 92-108 under the “40-60” rule, an encirclement of between 40 and 60 percent of the perimeter of the shoe by a band may or may not constitute a foxing or a foxing-like band, depending on whether the band functions or looks like a foxing. It is our determination that in both look and function, the unit molded sidewalls of the sole readily exhibit the characteristics of a foxing or a foxing-like band and the measured, greater than ¼-inch high overlap of the upper around approximately 45% of the perimeter of the shoe does constitute a substantial encirclement. Since the instant shoe is considered to have a foxing-like band, your assertion to classify it under 6402.91.4010 (HTS) is not applicable.

In a follow-up telephone conversation, you informed this office that the shoe would be valued at over $3 but not more than $6.50 per pair.

The applicable subheading for the shoe, identified as “sample 17361” will be 6402.91.70, Harmonized Tariff Schedule of the United States (HTS), 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 covers the ankle; in which the upper’s external surface area measure over 90% rubber or plastics (including any accessories or reinforcements); which has a foxing or a foxing-like band applied or molded at the sole and overlapping the upper; which is not designed to be a protection against water, oil, or cold or inclement weather; and which is valued over $3 but not over $6.50 per pair. The rate of duty will be 90 cents per pair plus 37.5% 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.


Robert B. Swierupski

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