CLA-2 CO:R:C:G 088043 DFC

Mr. Rusty Funk
Omni International Distributors Inc.
RD3 Box 152 B1 Falls Road
Hudson, New York 12534

RE: Reconsideration of New York Ruling Letter (NYRL) 854037 dated July 18, 1990, concerning the tariff classification of a mountaineering boot with two liners. NYRL 854037 affirmed. Boot, mountaineering; Band foxing-like

Dear Mr. Funk:

In a letter dated September 26, 1990, you asked us to reconsider the result reached in NYRL 854037 dated July 18, 1990, concerning the tariff classification of a mountaineering boot with two liners.

FACTS:

The sample produced in West Germany is a plastic, high-top, lace-up, mountaineering boot with two liners. The boot is made from two pieces of molded plastic, a bottom/shaft and a shaft extension. The two pieces are attached by two oversized metal rivets on both sides of the ankles in a manner which permits the shaft extension to pivot forward and backward on those rivets. The boot has a molded rubber outsole. It also has a 1-1/16 inch wide rubber strip applied to the front and sides of the upper at the sole.

Both liners are high-top lace-ups with applied rubber/plastic soles and different types and amounts of insulation. Although you state that both liners have uppers on which the outer fabric is nylon cordura, the liner labelled "warm weather" actually has an upper of which the external surface area is predominantly, but not over 90 percent, plastic. The liner labelled "cold weather" has a foxing-like band.

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In NYRL 854037 our New York office ruled that the subject merchandise was properly classifiable under subheading 6402.91.90, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, having a foxing-like band, other, other, valued over $12 per pair. The applicable rate of duty for this provision is 20 percent ad valorem.

It is your contention that the rubber strip which encircles approximately 67 percent of the perimeter of the boot is not a foxing-like band. The rationale for your position is that the strip is called a "rand" rather than a foxing-like band and it does not contribute to the adhesion of the sole to the upper. Further, the boot can function without the "rand."

ISSUE:

Does the boot possess a foxing-like band?

Does the boot with its liners constitute a set for tariff purposes?

LAW AND ANALYSIS:

T.D. 83-116 lists seven characteristics of a foxing-like band. Those characteristics are as follows:

1. The term "foxing-like" applies to that which has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. 2. A foxing-like band need not be a separate component. 3. A foxing-like band may or may not secure the joint between the sole and upper.

4. A foxing-like band must be applied or molded at the sole and must overlap the upper. 5. A foxing-like band must encircle or substantially encircle the entire shoe. 6. A foxing-like band may be attached by any means. 7. 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. If this vertical overlap is less than 1/4 inch, such footwear is presumed not to have a foxing-like band.

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The 1-1/16 inch rubber strip which you call a "rand" is applied at the sole, measures over 1/4 inch in height and substantially encircles the perimeter of the shoe.

Although the strip does not function as a foxing, it has the appearance of a foxing.

In view of the foregoing, it is our opinion that the strip constitutes a foxing-like band for tariff purposes. The fact that you may call it a "rand" does not make it something other than a foxing-like band.

In applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

GRI 3, HTSUSA, is relevant in determining whether the boot and liners constitute a set for tariff purposes. It reads in pertinent part as follows:

3. When by application of Rule 2(b) or for any other reason , goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

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(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

GRI 6, HTSUSA, which is also relevant here provides in pertinent part that "[f]or legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. . . ."

GRI 3(b), HTSUSA, is germane here because GRI 3(a), HTSUSA, cannot be used in determining classification. The Explanatory Notes for GRI 3, HTSUSA, which constitute the official interpretation of the Harmonized System at the international level, state that the term "goods put up in sets for retail sale" means goods that:

(a) consist of at least two different articles prima facie classifiable in different headings ( or, by GRI 6 subheadings);

(b) consist of products or articles put together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The boot is to be imported with both a winter and a summer liner. The boot imported with a winter liner is prima facie classifiable under subheading 6402.91.50, HTSUSA, as protective footwear while the boot imported with a summer liner is not considered protective footwear and is prima facie classifiable under subheading 6402.91.90, HTSUSA.

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It is our opinion that the boot and the two liners meet the criteria set forth above for being considered a set for tariff purposes. Since we have concluded that the boot and the liners constitute a set for tariff purposes, it is necessary to determine which component of the set imparts the essential character thereto. The relevant Explanatory Note for GRI 3(b), HTSUSA, states as follows:

VIII The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Inasmuch as we are unable to ascertain whether the boot should be classified as protective footwear or as footwear other than protective footwear, we must classify the boot under the subheading which occurs last in numerical order following GRI 3(c) and 6, HTSUSA. In this instance that subheading is 6402.91.90, HTSUSA.

HOLDING:

The mountaineering boot represented by the sample is classifiable under subheading 6402.91.90, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, having a foxing-like band, other, other, valued over $12 per pair. The applicable rate of duty for this provision is 20 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc AD NY Seaport
1cc Eric Francke NY Seaport
1cc Legal Reference
cahill library/peh
088043