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HQ 089219


May 29, 1991

CLA-2 CO:R:C:M 089219 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.60-90

John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, NY 10017

RE: Athletic footwear; substantial encirclement; foxing-like band

Dear Mr. Pellegrini:

This is in response to your letter dated March 12, 1991, on behalf of Avia International Group, Inc., requesting a tariff classification ruling under the Harmonized Tariff Schedule of the United States (HTSUSA) for an athletic shoe which will be produced in Taiwan or China. A sample was submitted for our examination.

FACTS:

The sample, style number 1312, is a man's low-top athletic shoe with a rubber and plastic outsole. The upper is vinyl but for the textile embroidery on the outside quarter, which represents less than 10 percent of the external surface area of the upper. The outsole has a toe bumper/mudguard which overlaps the upper by more than 1/4 inch and is cemented and stitched to the upper. This overlap of the upper by the outsole constitutes approximately 20 percent of the perimeter of the shoe. There is an EVA piece which we consider to be a midsole of the type found in many joggers rather than a separate wedge. At the back of the shoe is a heel stabilizer which overlaps the upper by more than 1/4 inch and is cemented to both the sole and the upper. This overlap of the upper constitutes approximately 40 percent of the perimeter of the shoe.

It is your opinion that the sample is classifiable under subheading 6402.99.15, HTSUSA, which provides for other footwear with outer soles and uppers of rubber or plastics, 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.

ISSUE:

Should the heel stabilizer be considered as being "applied or molded at the sole."

Does the overlap of the upper substantially encircle the shoe.

Does the shoe have a foxing-like band.

LAW AND ANALYSIS:

T.D. 83-116 lists the characteristics of foxing and foxing- like bands. The relevant characteristics are as follows:

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.

7. A foxing does not include components known by another name clearly recognized in the trade such as mock welts, toe bumpers, wedge wraps and platform wraps.

You state that the sample does not possess a foxing-like band for the following reasons:

1. The toe bumper portion of the outsole overlaps approximately 20 percent of the perimeter of the shoe. Since the outsole does not overlap any other part of the upper there is no substantial encirclement.

2. The heel stabilizer overlaps the upper but it is not applied or molded at the sole. It is applied to a separate wedge. Furthermore, the heel stabilizer encircles 38 percent of the shoe's perimeter.

3. A heel stabilizer is a separate component which satisfies characteristic 7 listed above and as such is not considered a foxing or foxing-like band.

You argue that neither the outsole nor the heel stabilizer can be considered a foxing-like band because neither substantially encircles the perimeter of the shoe. You state that when encirclement is between 40 and 60 percent, a foxing- like band exists when the bottom of the shoe has the appearance of a foxing on a traditional sneaker or tennis shoe.

Finally, you assert that the overlap of the toe bumper and the heel stabilizer may not be combined to ascertain substantial encirclement. Consequently, since neither component substantially encircles the shoe and they may not be combined for that purpose, the footwear at issue does not possess a foxing- like band.

Our rationale for considering the heel stabilizer to be "applied or molded at the sole" is that it is cemented on its bottom horizontal surface to the midsole, and on its top horizontal and inside vertical surfaces to the upper. In both appearance and function, it is foxing-like.

By our measurement, a total overlap of 1/4 inch or more by the lateral stabilizer and the sole exists around 60 percent of the upper. Although the term "foxing" was stated in T.D. 83-116 not to include components clearly recognized in the trade, such as toe bumpers, it is our opinion that this shoe should not be viewed according to its individual constituent elements but, rather in its totality. Specifically, while a toe bumper is recognized as such in the trade, what we have here is more than a toe bumper. See, HRL 087873, dated December 8, 1990, where Customs ruled that a man's athletic shoe with a toe bumper and a lateral stabilizer which overlapped the upper in the back possessed a foxing-like band.

It is our opinion, that the instant footwear has a foxing like band and it is classifiable in subheading 6402.99.60, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, having a foxing-like band applied or molded at the sole and overlapping the upper.

HOLDING:

The instant athletic footwear is classifiable in subheading 6402.99.60-90, HTSUSA. The rate of duty depends on value per pair.

Sincerely,

John Durant, Director
Commercial Rulings Division

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