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HQ 951384




July 6, 1992

CLA-2 CO:R:C:M 951384 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

District Director
United States Customs Service
610 South Canal Street
Chicago, IL 60607

RE: Protest No. 3901-90-100052; subheading 6402.91.50; HRL 083097; HRL 087847

Dear Sir:

The following is our decision regarding the Protest and Request for Further Review No.3901-90-100052, dated July 24, 1990. At issue is the classification of men's over the ankle athletic shoes under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the shoe was submitted for our examination.

FACTS:

The subject article is a men's over the ankle athletic shoe that has a plastic upper and a plastic/rubber two color molded bottom. The toe bumper overlaps 9 inches or approximately 35 percent of the perimeter of the upper by more than 1/4 inch, while the remainder of the bottom overlaps the upper by less than 1/16 inch.

Your office liquidated entries covering these shoes under subheading 6402.91.50, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, 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. The rate of duty is 37.5 percent ad valorem.

The protestant argues that the shoes should be classified in subheading 6402.91.40, HTSUS, which provides for 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 this chapter) 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, etc.... The rate of duty is 6 percent ad valorem.

ISSUE:

Does the sample men's athletic shoe possess a foxing-like band?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

In deciding the classification of footwear of this type, we must determine whether the footwear has as one of its constituent parts a "foxing-like band." Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983) set forth guidelines relating to the characteristics of foxing or foxing-like bands. The relevant characteristics at issue in this case 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. Unit molded footwear is considered to have a foxing- like band if 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 of an inch, such footwear is presumed not to have a foxing-like band.

In Headquarters Ruling Letter (HRL) 083097, dated December 22, 1988, Customs classified a men's high top athletic shoe having a molded outsole with an extended 1/2 inch high overlapping section which wrapped around the toe area for approximately 9 inches. Customs held that the cupping of the molded outsole around the perimeter of the shoe, excluding the 9 inches around the toe area, was so slight as to be negligible. Therefore, the shoe did not possess a foxing-like band because the overlap by the outsole did not substantially encircle the shoe. See also, HRL 085934, dated June 6, 1990, and HRL 087847, dated September 26, 1990.

An examination of the sample shows that the toe bumper overlaps the upper by more than 1/4 inch over 9 inches or 35 percent of the perimeter of the shoe, while the remaining overlap of the upper by the sole is 1/16 or less. A foxing-like band is presumed not to exist when it encircles less than 40 percent of the perimeter of the shoe. Therefore, 35 percent encirclement of the perimeter of the shoe by the toe bumper does not constitute a substantial encirclement of the shoe and is not sufficient to create a foxing-like band. Thus, the men's over the ankle athletic shoes are classified in subheading 6402.91.40, HTSUS.

HOLDING:

This protest should be granted. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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