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HQ 086589


June 25, 1990

CLA-2 CO:R:C:G 086589 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.9060

Lindsay, Hart, Neil & Weigler
Lawyers
Suite 1800
222 S.W. Columbia
Portland, Oregon 97201-6618

RE: Reconsideration of New York Ruling Letter (NYRL) 847959 dated December 21, 1989, concerning the tariff classification of Avia's ARC 610W athletic shoe.

Dear Gentlemen:

In a letter dated February 23, 1990, you asked for a reconsideration of NYRL 847959 dated December 21, 1989, concerning the tariff classification of Avia's ARC 610W athletic shoe.

FACTS:

The Avia ARC 610W is a high-cut running shoe. The upper is of plastic with a small amount of textile inserts and trim. The textile comprises less than 10 percent of the external surface area of the upper, even after adding back the trim. The bottom consists of a molded rubber/plastic outsole and midsole which you state are cemented to each other prior to their being cemented as a unit to the upper. The bottom overlaps approximately 84 percent of the perimeter of the upper by amounts varying from minimal to approximately 3/4 inch.

In NYRL 847959 Customs took the position that the ARC 610W was properly classifiable under subheading 6402.91.9060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, valued over $12/pair.

It is your position that the ARC 610W does not possess a foxing-like band and should be classified under the subheading 6402.91.4045, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, 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 chapter 64, HTSUS) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and (2) except footwear (other than footwear having uppers which from a point 3cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and exposed on the outer surface a substantial portion of functional stitching) 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:

Does the ARC 610W possess a foxing-like band?

LAW AND ANALYSIS:

With respect to defining the term "foxing-like band", T.D. 83-116 stated in pertinent part as follows:

Specifically, in using the term "foxing-like band", it is apparent that Congress intended to include rubber and plastic footwear that is not constructed with a traditional separate functional foxing. For example, certain injection molded sneakers have foxing-like bands. Upon completion there exists a strip which covers what appears to be (but is not in fact) the joint between the upper and the sole.

You argue that if the band involved does not cover what appears to be (but is not in fact) the joint, it is not a "foxing-like" band within the meaning of the exception. Specifically, the "foxing-like band" which is a grey extension of the midsole extends upwards, overlapping the upper. However, it is molded in such a way that "what appears to be . . . the joint between the upper and the sole" is below it, that is, it extends upwards from the joint, rather than covering the joint. You explain that this is accomplished through a clear indentation at the apparent top of the midsole platform, and the midsole wrap is seen as one of a succession of five overlapping layers of the upper, rather than as a piece that covers the joint.

In view of the above analysis you conclude that the "ARC 610's midsole wrap does not mimic 'foxing', as the exception uses that term, and therefore does not fall within the exception."

We do not agree with your analysis. Your attention is invited to T.D. 83-116 which lists seven characteristics of a foxing-like band. The fourth characteristic which is relevant here reads as follows:

4. A foxing-like band must be applied or molded at the sole and must overlap the upper.

Also, under Customs Position that document provides that:

An analysis of the parenthetical exception indicates that for the design feature in the form of a band to be considered a foxing-like band, it must be molded at the sole and must also overlap the upper.

The instant sample has a foxing-like band because the band in fact is molded at the sole and overlaps the upper at that point which is the crucial element in determining the presence of a foxing-like band. It is our observation that this type of construction does mimic foxing. Specifically, T.D. 83-116 in discussing the definitions of foxing reads in pertinent part as follows:

With rubber-soled canvas upper shoes, foxing is usually a strip of rubber covering the joint between the sole and upper. The Art and Science of Footwear Manufacturing (American Footwear Industries Association 1974).

A thin narrow strip of material wrapped around the shoe upper, where it is joined with the outsole which is folded under before attaching the outsole to the upper. B. F. Goodrich Company pamphlet entitled "Canvas Rubber and Koroseal Footwear Definitions" (1959).

The above-cited definitions encompass the commercial or trade understanding of foxing. However, it is contended that the B.F. Goodrich definition does not fall within the exclusionary language because the strip does not overlap the upper, which connotes an extension from one location to another. It is Customs
view that the B. F. Goodrich definition satisfies the exclusionary language because the strip can be considered as being applied at the sole noting that it is folded under at the juncture of the sole and upper and it does extend upward thus overlapping the upper.

It is our position based on the B.F. Goodrich definition of foxing set out above that the construction of the ARC 610W does mimic the B.F. Goodrich definition of foxing inasmuch as the band extends upwards from the joint (overlapping the upper) rather than covering it.

You state that a foxing-like band is not present on the 610W because the band does not substantially encircle the shoe. Specifically, in order to consider the shoe as being substantially encircled one must include the toe piece. However, to do so requires that one regard the toepiece and midsole wrap as the same design element. But the toepiece is visually and as a design element distinct from the midsole wrap; it is in fact a wrap from the sole itself, and is not part of the "band" defined by the midsole wrap.

We do not make any distinction between the sole and the midsole for the purpose of determining the presence of a foxing-like band. In this instance the sole including the midsole overlaps approximately 84 percent of the perimeter of the upper by amounts varying from minimal to approximately 3/4 inch.

HOLDING:

The ARC 610W possesses a foxing-like band and is classifiable under subheading 6402.91.9060, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, valued over $12/pair. NYRL 847959 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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