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HQ 088773




May 20, 1991

CLA-2 CO:R:C:M 088773 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.60-90

John b. Pellegrini, Esq.
Law Offices
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Footwear, athletic; Band, foxing-like; Encirclement, substantial

Dear Mr. Pellegrini:

In a letter dated January 17, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an athletic shoe which will be produced in Taiwan. A sample was submitted for examination.

FACTS:

The sample, style 055-3704-2, is a low top athletic shoe with a plastic upper and a rubber/plastic sole. The outsole is unit molded and 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 37.5 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 as described by you. At the back of the sample 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 23.1 percent of the perimeter of the shoe.

It is your opinion that the sample shoe is classifiable under subheading 6402.99.15, HTSUSA, as other footwear with outer soles and uppers of rubber of 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 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 possess a foxing-like band?

LAW AND ANALYSIS:

T.D. 83-116 lists the characteristics of foxing and foxing-like bands. The fourth, and fifth characteristics relating to foxing-like bands and the seventh characteristic relating to foxing which are relevant here read 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 platforms wraps.

Nothing these relevant characteristics of a foxing-like band, you insist the sample does not possess a foxing-like band for the following reasons:

1. The toe bumper portion of the outsole overlaps approximately 35 percent of the perimeter of the shoe. Inasmuch as the outsole does not overlap any other part of the upper there is no substantial encirclement.

2. The heel stabilizer overlaps the upper but is not applied or molded at the sole. It is applied to a separated wedge. Further, the heel stabilizer encircles only 23 percent of the perimeter of the shoe.

3. A heel stabilizer is a separate component which satisfies characteristic 7 listed above and as such may not be considered a foxing or a foxing-like band. Specifically, in
Headquarters Ruling Letter (HRL) 079773 dated October 8, 1987, Customs ruled that since characteristic 7 excludes toe bumpers and heel counters from consideration as foxing, the mudguards do not substantially encircle the boot and cannot be considered foxing or a 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 an understanding that when the encirclement is between 40 percent and 60 percent, a foxing-like band exists when the bottom of the shoe has the appearance of a foxing on the traditional sneaker or tennis shoe. Further, an examination of the sample shows more of an appearance of a jogger-type footwear due to the presence of a wedge.

In conclusion 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, since they may not be combined for that purpose, the footwear involved does not possess a foxing-like band.

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

Despite your claim Customs has never limited foxing-like bands only to shoes having the appearance of a traditional sneaker or tennis shoe. Furthermore, the instant sample is hardly jogger-type in appearance because that type of footwear has only a slight turn-up overlap of the outsole over the upper in the toe, not the huge toe bumper/mudguard like the instant sample.

By our measurement a total overlap of 1/4 inch or more by the sole, including the midsole, exists around 60.6 percent of the upper. Although the ter "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 clearly more than a toe bumper.

It should be noted that Customs has already ruled in HRL 087873 dated December 8, 1990, 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.

In view of the foregoing, it is our opinion that footwear represented by the sample is classifiable under subheading 6402.99.60-90, 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, with duty at rate depending on value per pair.

HOLDING:

Shoes represented by the sample possess foxing-like bands and are classifiable under subheading 6402.99.60-90, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division


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