OT:RR:CTF:FTM H299500 JER
Ms. Kristi Brokaw
11980 SE Knee Court
Happy Valley, OR 97086
RE: Modification of NY N285624; tariff classification of a men’s closed-toe, closed-heel, casual slip-on shoe with a foxing-like band.
Dear Ms. Brokaw:
On May 24, 2017, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N285624 to Mr. Richard Writsman of the James J. Boyle Company with respect to a ruling request filed on behalf of their client and importer, Marolina Outdoor Inc. NY N285624 pertained to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of four styles of men’s footwear identified by their Style Numbers and Model, which included: Style # H8332000 (Model Flipster), Style # H8012000 (Model Brewster 2317), Style # H8011000 (Model Attack) and Style # H8331000 (Model Caruso).
Subsequently to issuance of NY N285624, CBP has received additional information pertaining to the construction and make-up of Style # H8012000. The new information makes clear that the decision in NY N285624 was incorrect as it pertains to the classification of Style # H8012000 (Model Brewster 2317). Accordingly, NY N285624 is hereby modified to reflect the proper classification of Style # H8012000.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on April 29, 2020, in Volume 54, Number 16, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY N285624, Style # H8012000 (Model Brewster 2317), the men’s closed-toe, closed-heel, casual slip-on shoe was described as follows:
Style # H8012000 (Model Brewster 2317), is a men’s closed-toe, closed-heel, below-the-ankle, casual slip-on shoe. The upper is made from 100 percent cotton textile material. Elastic gore is sewn on the lateral and medial sides of the vamp. The medial side of the shoe has two metal vent holes covered with a mesh. Embroidered onto the lateral side of the shoe is the word Huk and a textile material label with the word Huk and the phrase Performance Fishing is sewn onto the vamp. The outer sole is made from 100 percent rubber or plastics. The shoe is not protective nor does it have a foxing or foxing-like band. The shoe is valued over $12/pair.
In NY N285624, CBP did not view the subject shoe to consist of any foxing or foxing-like band and thus classified Style # H8012000 (Model Brewster 2317), the men’s closed-toe, closed-heel, casual slip-on shoe in subheading 6404.19.3940, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fastners, the foregoing except…footwear having foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other, For men.”
On May 24, 2018, you filed a request for reconsideration of NY N285624, on behalf of Marolina Outdoor, with respect to Style # H8012000 (Model Brewster 2317). In your request, you opine that the subject shoe should be classified under subheading 6404.19.9030, HTSUSA, as other footwear having a foxing or foxing-like band. Together with your request for reconsideration, you provided a sample of Style # H8012000 (Model Brewster 2317) along with a sample of the outer sole (detached from the upper). We note that the complete slip-on shoe has been cross-sectioned to reveal the manner in which the upper is attached to the outer sole. The additional detached outer sole has been measured to determine the composition of the alleged foxing.
ISSUE:
Whether the subject men’s closed-toe, closed-heel, casual slip-on shoe is classified under subheading 6404.19.3940, HTSUSA, as other footwear not having a foxing or foxing-like band, or under subheading 6404.19.9030, HTSUSA, as other footwear having a foxing or foxing-like band.
LAW AND ANALYSIS:
Classification under the HTSUSA 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 GRIs may then be applied.
The 2020 HTSUSA provisions under consideration are as follows:
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
6404.19 Footwear with outer soles of rubber or plastics:
Other:
Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fastners, the foregoing except…footwear having foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper:
Other:
6404.19.39 Other….
Other….
6404.19.39.40 For men….
* * * * * *
6404.19.90 Valued over $12/pair….
6404.19.90.30 For men….
Note 4 to Chapter 64, HTSUS, states as follows:
Subject to note 3 to this chapter:
The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments;
The constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments.
You argue that Style # H8012000 (Model Brewster 2317) (hereinafter, “the Brewster”) should not have been classified under subheading 6404.19.3940, HTSUSA. Instead, you assert that the Brewster should be classified under subheading 6404.19.9030, HTSUSA. Specifically, you assert that the Brewster should be classified under subheading 6404.19.9030, HTSUSA, because it has a foxing-like band.
CBP has previously addressed the distinction between footwear featuring foxing or a foxing-like band as opposed to footwear without foxing. For example, in Headquarters Ruling Letter (“HQ”) 083120, dated February 6, 1990, CBP determined that a strip feature of an athletic shoes was a “bumper” rather than a foxing-like band. Moreover, in HQ 083120, we explained that CBP has set forth guidelines relating to characteristics of foxing and a foxing-like band in Treasury Decision (“T.D.”) 83-116, Cust. Bull. 229 (1983). In particular, the decision in HQ 083120 explained that the guidelines in T.D. 83-116 indicate that the following five (5) criteria are characteristics of foxing:
1). A foxing is a strip of material which is separate from the sole and upper; 2). A foxing secures the joint between the sole and upper; 3). A foxing must overlap the upper and the overlap must be readily discernible; 4). A foxing is a band, i.e. a strip serving to join, hold together or integrate two or more things. . .; 5). A foxing must encircle or substantially encircle the entire shoe.
A more recent set of criteria was set forth by the Footwear Distributors and Retailers of America (“FDRA”). According to the FDRA a foxing-like band is defined as follows:
A foxing-like band -
has the same or nearly the same appearance, qualities or characteristics as a foxing
does not have to be a separate component and is often part of the unit-molded sole
must be applied or molded at the sole, overlap the upper and substantially encircle the entire shoe
the overlap must be ¼ inch or more (measured vertically starting from where the upper material turns upward from the horizontal to the vertical plane) for footwear in American men’s, youths and boys sizes 11.5 and larger and American women’s and misses sizes 12.5 and larger, 3/16 inch or more for American children’s size 8.5 up to boys size 11 and girls size 12 and 1/8 inch or more for infants sizes 0 through 8
an encirclement of 40% or less of the shoes perimeter is not “substantial” and does not constitute a foxing-like band. An encirclement of 60% or more is “substantial” and is a foxing-like band. An encirclement between 41% and 59% may be a foxing-like band depending upon the type of shoe and placement, function and appearance of the overlap.
Similarly, in HQ 952307, dated August 17, 1992, CBP discussed the “Characteristics of a Foxing-Like Band” explaining that a foxing-like band has the same appearance or characteristics as the foxing appearing of a traditional sneaker or tennis shoe.
Under the present facts, Marolina Outdoors submitted a sample of Style # H8012000 (“the Brewster”) along with a separate (detached) sample of the outer sole component. Upon review of the new information provided along with an assessment of the two samples submitted, it is our view that NY N285624 incorrectly determined that the Brewster did not have a foxing-like band. In particular, the outer sole which covers and overlaps the upper textile material of the shoe, measures ¼ (one-fourth) of an inch vertically around the entire perimeter. Also, unlike the footwear in HQ 083120 and HQ 952307, the foxing-like band of the subject Brewster encircles the entire shoe, including the front toe area and the heel area. It has the appearance and characteristic of the foxing on traditional tennis shoes. Likewise, the foxing-like band of the Brewster does not stem from a separate component but instead is molded into and is part of the outer-sole component.
HOLDING:
By application of GRI 1, we find that Style # H8012000 (Model Brewster 2317) is provided for in heading 6404, HTSUS, and is specifically classified under subheading 6404.19.9030, HTSUSA, which provides for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fastners, the foregoing except…footwear having foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Valued over $12/pair, For men.” The 2019 column one, general rate of duty is 9% 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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N285624, dated May 24, 2018, is MODIFIED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division