HQ 0083120 - Athletic shoe; foxing or foxing-like band - United States International Trade Commision Rulings

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HQ 083120

February 6, 1990

CLA-2 CO:R:C:G 083120 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.1560

Mr. Robert Stang
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, N.Y. 10017

RE: Athletic shoe; foxing or foxing-like band

Dear Mr. Stang:

This ruling is in response to your letter of December 12, 1988, requesting the classification of an athletic type shoe under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The shoe in question is an athletic type shoe, Vida style No. N2056. The shoe has a functionally stitched plastic upper, a five eyelet, U-throat style, lace closure, 1/2 inch high vulcanized rubber toe and heel bumpers, and a cemented-on calendered rubber sole. The upper is cemented to the bottom edge of the rigid cardboard insole before the outsole and bumpers are added.

ISSUE:

Whether the shoe at issue has a foxing-like band which would preclude its classification under subheading 6402.99.15, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

The issue that we are asked to address is whether the footwear in question has a foxing-like band. Customs has set forth guidelines relating to characteristics of foxing and a foxing-like band in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983). The guidelines indicate that the following 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. . .; and

5. A foxing must encircle or substantially encircle the entire shoe.

In the case at issue, the band that encircles the toe and heel of the shoe is made of genuine foxing tape. The band serves to help attach the upper to the sole at the front and back of the shoe. It is Customs position, however, that the foxing at both the front and back of the shoe does not "encircle or substantially encircle the entire shoe" as provided for in the Customs guidelines dealing with foxing. The foxing tape does not encircle or substantially encircle the entire shoe but rather the tape only covers approximately 35 to 47 percent of the shoe, depending on the size of the shoe and where the sample comes from.

Moreover, the Customs guidelines specifically state that a foxing does not include components known by another name that are clearly recognized in the trade such as "mock welts, toe bumpers, wedge wraps, and platform wraps." Since the extra strip of material on the shoe only encircles the toe and the heel, it more closely resembles a bumper rather than a foxing-like band. Accordingly, based on the foregoing analysis, it is Customs position that the item at issue is classifiable under subheading 6402.99.1560, HTSUSA, which provides for other footwear with outer soles and uppers of rubber or plastics: other footwear: other, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather): Other.

HOLDING:

The shoe at issue is classifiable under subheading 6402.99.1560, HTSUSA, dutiable at a rate of 6% ad valorem.

Sincerely,

John Durant, Director

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