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HQ 089526

September 17, 1991

CLA-2 CO:R:C:M 089526 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.50; 6404.19.40

District Director of Customs
300 South Ferry Street
Room 2017
Terminal Island
San Pedro, CA 90731

RE: Footwear, Espadrilles; Foxing-like Band; Simultaneous Molded Construction; Protest No. 27040-004064

Dear Sir:

This is our response on Application for Further Review of Protest No. 27040-004064, dated October 2, 1990, concerning your action in classifying and assessing duty on ladies' espadrilles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise incorporates a textile upper and a rubber sole. There is a rise around the rim of the sole. The rim varies in height, its highest point approximately 1/4 inch at the heel. The textile upper is cemented and stitched to the horizontal portion of the inner sole.

ISSUE:

Whether the subject espadrille possesses 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.

The merchandise was entered under subheading 6404.19.40, HTSUSA, which provides for:

[f]ootwear with outer soles of rubber or plastics: [o]ther: [o]ther: [v]alued not over $3/pair: [h]aving soles (or midsoles, if any) of rubber or plastics which are affixed to the upper exclusively with an adhesive (any midsoles also being affixed exclusively to one another and to the sole with an adhesive); the foregoing except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear with soles which overlap the upper other than at the toe or heel.

However, the merchandise was liquidated under subheading 6404.19.50, HTSUSA, which provides for:

[f]ootwear with outer soles of rubber or plastics: [o]ther: [o]ther: [v]alued not over $3/pair: [o]ther.

Counsel for the importer argues that the subject footwear possesses neither a foxing nor a foxing-like band because it "does not incorporate 'the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.'"

This identical issue was ruled upon in HQ 086114, dated February 1, 1990. In that case, espadrilles very similar to the ones in the present case were involved, and it was ruled that they possessed foxing-like bands. In fact, the brief submitted by counsel in the present case is almost identical to the brief they submitted in HQ 086114.

The reasoning in HQ 086114 applies just as strongly in the present case. One of counsel's arguments is that the 1/4 inch rule in T.D. 83-116, regarding presumptions of foxing-like bands, applies to the subject espadrille. It is claimed that the sole does not overlap the upper by a 1/4 inch except at the heel. Therefore, the shoe does not possess a foxing-like band. However, that rule "does not apply . . . since the special rule applies only to 'unit molded soles'" (HQ 086114). The subject espadrille has a simultaneous molded sole, not a unit molded sole.

Counsel, as it did in HQ 086114, cites HQ 072551, dated August 29, 1988, in which it is claimed that a similar shoe whose insole helped attach the upper to the outsole did not possess a foxing-like band. However, "[t]he protestant's assessment is incorrect. The shoe ruled on in HRL 072551 had an upper lasted to a rigid cardboard insole and was stated to have a maximum overlap of the sole onto the upper of 'considerably less than 1/8 inch.' That shoe was completely different from those involved
here and its classification is not relevant here" (HQ 086114). Again, the subject espadrille is not of the same construction as the shoe in HQ 072251. The overlap of the sole onto the upper is more than 1/8 inch and the subject upper is not lasted to a rigid cardboard insole.

Since the 1/4 inch rule does not apply to simultaneous molded soles and because the sole considerably overlaps onto the upper, the subject espadrille does possess a foxing-like band.

HOLDING:

The espadrilles are classifiable under subheading 6404.19.50, HTSUSA, which provides for: "[f]ootwear with outer soles of rubber or plastics: [o]ther: [o]ther: [o]ther." The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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