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