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HQ 085765

January 5, 1990

CLA-2 CO:R:C:G 085765 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.70

Ms. Wendy Wojnar Percival
Asst. Customs/Freight Mgr.
Kinney Shoe Corporation
233 Broadway
New York, New York 10279-0099

RE: Footwear from Spain

Dear Ms. Percival:

This ruling is in response to your letter of September 6, 1989, requesting the proper classification of ladies' canvas upper, rubber sole footwear under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were provided for our examination.

FACTS:

The two submitted samples are of nearly identical construction, shape and method of attachment of the molded plastic/rubber outsoles.

Style #1.992 is a women's low-heel shoe. It is of the slip- on type with an upper of canvas (textile), an elasticized band going across the instep measuring approximately 1-1/2 inches in width and 2 inches in length, a textile/paperboard insole, and an outsole of rubber/plastics that has been formed and attached to the upper by a single molding process, overlapping the upper by approximately 3/16 of an inch all around the shoe.

Style #5935 is a women's low-heel shoe. It is of the slip- on type with an upper of canvas (textile), an elasticized band going across the instep measuring approximately 3 inches in width and 1-1/2 inches in length, a textile/cork insole and an outsole of rubber/plastics that has been formed and attached to the upper by a single molding process, overlapping the upper by approximately 1/4 inch all around the shoe.

ISSUE:

Do both styles of shoes possess a foxing-like band?

LAW AND ANALYSIS:

The HTSUSA does not include a definition of a "foxing-like band." Likewise, no trade understanding or commercial designation for the term exist. Customs, nonetheless, in T.D. 83-166, 17 Cust. Bull. 229 (1983), at page 248, set forth guidelines relating to the characteristics of a foxing-like band. They 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 upper 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.

The two subject samples meet the first six criteria stated above. There seems to be some question, however, as to the application of the above-mentioned 1/4 inch height requirement. That requirement, however, only applies to footwear with unit molded bottoms.

Unit molding encompasses two distinct manufacturing processes. In pre-molded construction, a pre-formed molded unit sole is separately attached to the upper after lasting.

Here, the subject shoes have outsoles that are constructed and attached by a simultaneous molding process. The molded soles, at the time of their formation, were molded directly to the assembled and lasted uppers. The 1/4 inch height requirement, therefore, is of no consequence to this case. Both styles of shoes do, in fact, exhibit foxing-like bands.

HOLDING:

The subject merchandise is classifiable under subheading 6404.19.70, HTSUSA, which provides for footwear with outer soles or rubber, plastics, leather of composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $3 but not over $6.50/pair: Other. The applicable rate of duty is $.90 per pair and 37.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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