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HQ 089577

October 7, 1991

CLA-2 CO:R:C:M 089577 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.60-90; 6402.99.15

Mr. John B. Pellegrini
Ross & Hardies
529 Fifth Avenue
New York, NY 10017-4608

RE: Footwear, Athletic Shoes; Foxing-like Band; Toe Bumper; T.D. 83-116; Reconsideration of HQ 088873

Dear Mr. Pellegrini:

This is in response to your letter of May 31, 1991, requesting reconsideration of HQ 088873, dated May 20, 1991, concerning the tariff classification of a low-top athletic shoe. In that ruling, we held that the subject shoe's toe bumper was actually "clearly more than a toe bumper", and therefore could be included in the determination of whether the shoe possessed a foxing-like band. The shoe, depending on value, was classified under subheading 6402.99.60-90, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [o]ther: [o]ther."

FACTS:

The merchandise consists of a low-top athletic shoe with a plastic upper, a rubber/plastic outsole, and a rubber/plastic midsole. Part of the outsole overlaps the upper in the front of the shoe. It is your claim that this area of overlap is the shoe's toe bumper. It covers approximately 34.5 percent of the circumference of the shoe. There is a separate plastic heel stabilizer at the back of the shoe. The heel stabilizer is attached to the midsole and overlaps the upper. The area of the overlap by the heel stabilizer represents approximately 22 percent of the circumference of the shoe. Together, the frontal overlap and the heel stabilizer easily covers over 40 percent of the circumference of the shoe.

ISSUE:

Whether the frontal overlap of the shoe's upper by the sole (the part referred to by you as the "toe bumper") can be considered in determining the existence of a foxing-like band?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative chapter or section notes.

After careful consideration of numerous comments submitted by footwear importers and the domestic shoe industry, by a document published as T.D. 83-116 in Federal Register of May 23, 1983 [48 FR 22904, 17 Cust. Blt. 229 (1983)], the Customs Service set forth:

(1) Customs position regarding the proper interpretation of provisions in the Tariff Schedules of the United States (TSUS) pertaining to imported footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper, and (2) guidelines relating to the characteristics of foxing and a foxing-like band.

Even though the TSUS was superceded by the HTSUSA, effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear.

T.D. 83-116 lists the characteristics of a foxing. The seventh characteristic which is relevant here reads as follows:

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 (emphasis supplied).

You argue that, under T.D. 83-116, the toe bumper exclusion under "Characteristics of a Foxing" should be equally applied to "Characteristics of a Foxing-Like Band". You claim, applying this theory, that "toe bumpers" should not be included in the determination of the existence of a foxing-like band. Therefore, it is your belief that the subject merchandise is classifiable under subheading 6402.99.15, HTSUSA, which provides for:

[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [h]aving uppers of which over 90 percent of the external surface area . . . . is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper . . . .): [o]ther.

As noted, the guidelines in T.D. 83-116 were developed after a thorough review of the issues and based on extensive input by both footwear importers and the domestic shoe industry. In the absence of clear and convincing arguments as to why they should not be adhered to, we are of the opinion that they should be followed.

We note that the exception for toe bumpers in the characteristic of a foxing is not found in the stated characteristics of a foxing-like band. It is our opinion that the overlap of the upper by the sole at the front portion of the shoe in issue cannot be considered a toe bumper for tariff purposes. As you have stated, the traditional toe bumper is like the type that is affixed to the Converse "Chuck Taylor All-Star". That shoe has a toe bumper separate from and covering the foxing. The subject shoe does not have a toe bumper similar to that present on the Converse shoe. The overlap of the upper by the sole at the front part of the shoe is not a separate piece. It is part of the unit molded outsole. This construction is entirely different from the traditional toe bumper piece on the Converse shoe which has a separate piece of material attached to the toe area of the shoe.

Inasmuch as a toe bumper or any frontal overlap of the upper by the sole can be considered in the measurement of a foxing-like band, we find that the subject shoe has a foxing-like band for classification purposes. We also affirm the reasoning in HQ 088873 that, in both appearance and function, the heel stabilizer of the subject shoe is foxing-like.

Under T.D. 83-116, "[u]nit 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 overlap of the upper by the heel stabilizer and the frontal area of the shoe is more than 1/4 inch. Both the frontal overlap and the overlap of the heel stabilizer taken together substantially encircle the perimeter of the subject shoe by well over 40 percent.

HOLDING:

Depending on value, the subject athletic shoe is classifiable under subheading 6402.99.60-90, HTSUSA, which provides for: "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [o]ther: [o]ther."

T.D. 83-116 does not exclude toe bumpers from consideration in determining the existence of a foxing-like band. A toe bumper is a separate piece attached to the front part of the shoe and is excluded from consideration by T.D. 83-116 in determining the presence of a foxing. The overlap of the upper by the sole at the front part of the sample shoe is to be considered in determining the presence of a foxing-like band. HQ 088773 is affirmed in full.

Sincerely,

John Durant, Director
Commercial Rulings Division

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