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NY G81429




September 19, 2000

CLA-2-64:RR:NC:TA:347 G81429

CATEGORY: CLASSIFICATION

TARIFF NO. 6402.91.90

Mr. Stephan S. Spraitzar
George R. Tuttle
Attorneys At Law
Three Embarcadero Center, Suite 1160
San Francisco, CA 94111

RE: The tariff classification of footwear made in China.

Dear Mr. Spraitzar:

In your letter dated September 7, 2000 you requested a classification ruling for an athletic shoe on behalf of Asics Tiger Corporation.

You explain that the subject shoe, style SY21 is an athletic shoe with an outer sole and upper of predominantly rubber or plastics. The shoe features a unit-molded outer sole that you contend does not constitute a foxing or foxing-like band. You state that the shoe is valued over $12/pair. You have attached with your letter, copies of two lab reports from Consumer Testing Laboratories, Inc. which indicate the amount of overlap of the upper by the outer sole. The amount of overlap that is “greater than ¼ inch” for the left shoe is indicated as 56.61 percent of the perimeter of the shoe on Report N52896 L. The amount of overlap that is “greater than ¼ inch” for the right shoe is indicated as 55.45 percent of the perimeter of the shoe on report N52896 R. You state that the shoe does not possess a foxing-like band based upon your belief that essentially, the overlap of ¼ inch or more is located in only two places: 1) the toe area, and 2) the heel area and that the overlap in the toe area is on the inside of the foot. In addition, you believe that style SY21 does not possess a foxing-like band because a large portion of the shoe’s upper is overlapped by a “heel stabilizer.”

Style SY21 is a mid-height “athletic” shoe which covers the ankle. The upper appears to be predominantly rubber/plastics. The outer sole is of a cupped, pre-formed unit-molded construction, which overlaps the upper around the entire perimeter of the shoe. The height of overlap varies around the perimeter according to your figures as follows:

LEFT SHOE

Less than 1/16 inch 0.00

Greater than 1/16 inch and
Less than 1/8 inch 30.99

Greater than 1/8 inch and
Less than 3/16 inch 10.33

Greater than 3/16 inch and
Less than ¼ inch 2.07

Greater than ¼ inch 56.61

RIGHT SHOE

Less than 1/16 inch 7.22

Greater than 1/16 inch and
Less than 1/8 inch 2.72

Greater than 1/8 inch and
Less than 3/16 inch 0.00

Greater than 3/16 inch and
Less than ¼ inch 34.61

Greater than ¼ inch 55.45

The sole component which you identify as a “heel stabilizer” overlaps the upper in excess of ½ inch around approximately 40 percent of the perimeter of the shoe; this overlap is included in the perimeter percentage overlap listed as greater than ¼ inch. You have submitted as a sample, the right half of a pair of style SY21. The upper of the submitted sample has been separated from the unit-molded sole. We assume the lab reports submitted are the results of testing both the right and left halves of a representative pair or style SY21. The difference in the measurements provided illustrates the difficulty in performing foxing and foxing-like band measurements. You have not provided an intact shoe for analysis.

As you know, T.D. 83-116 dated June 22, 1983 set forth guidelines relating to the characteristics of foxing and foxing-like band as follows:

CHARACTERISTICS OF A FOXING

1. A foxing is a strip of material, which is separate from the sole and upper. 2. A foxing secures the joint between the sole and upper. It covers the joint but there may be other footwear with a "foxing under" which does not cover the joint. 3. A foxing must overlap the upper and the overlap must be readily discernible. 4. A foxing is a band, i.e., a strip serving to join, hold together or integrate two or more things...a thin, flat encircling strip, strap or flat belting material serving chiefly to bind or contain something. 5. A foxing must encircle or substantially encircle the entire shoe. 6. A foxing may be attached by cementing, stitching or vulcanizing. 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. 8. However, a mudguard may meet the definition of a foxing. It is usually applied at the sole and folded under at the juncture of the sole and upper and it does extend upward overlapping the upper. It also acts to reinforce or supplement the juncture of the sole and upper.

CHARACTERISTICS OF A FOXING-LIKE BAND

1. The term "foxing-like" applies to that which has the same, or nearly the same appearance, qualities or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. 2. A foxing-like band need not be a separate component. 3. A foxing-like band may or may not secure the joint between the sole and upper. 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. 6. A foxing-like band may be attached by any means. 7. Unit 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 outsole initially meet, measured on a vertical plane. If this overlap is less than 1/4 inch, such footwear is presumed not to have a foxing-like band.

The concept of “substantial encirclement” is addressed in TD 92-108 dated November 11, 1992 entitled “SUBSTANTIAL ENCIRCLEMENT (40-60 RULE).” The 40-60 Rule refers to the measurement of the amount of encirclement of the perimeter of the shoe by the foxing or foxing-like band. Generally an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute a foxing or foxing-like band. An encirclement of between 40-60% of the perimeter of the shoe may or may not constitute a foxing or foxing-like band depending on whether the band functions or looks like a foxing. An encirclement of 60% of the perimeter of the shoe by the band is always considered substantial encirclement.

We do not agree with your contention that the overlap on style SY21 occurs only at the toe and heel. As previously mentioned, the “heel stabilizer” overlaps the upper by over 1/4 inch and this overlap comprises approximately 40 percent of the perimeter of the shoe. This is considerably more than “at the heel.” In addition, the overlap in the front of the shoe which extends at least ¼ inch in height comprises approximately 19 percent of the perimeter of the shoe. Again, this figure represents an area of overlap more than “at the toe.”

In regard to your contention that a “heel stabilizer” which overlaps the upper should be excluded in a foxing-like band determination, we have always combined different features in measuring the amount of encirclement of the upper by the sole overlap of unit molded soles. An example of this is found in HRL 087873 dated December 6, 1990, wherein overlap by separate lateral stabilizers was counted toward the existence of a foxing-like band. It is the opinion of this office that the unit-molded sole on style SY21 has the same or nearly the same appearance, qualities or characteristics as a foxing band appearing on a traditional sneaker or tennis shoe, and that such a finding is consistent with Customs policy regarding these matters.

The applicable subheading for style SY21 will be 6402.91.90 Harmonized Tariff Schedule of the United States (HTS), which provides for footwear with outer soles and uppers of rubber or plastics, other, which has a foxing or foxing-like band, covering the ankle, valued over $12/pair. The rate of duty will be 20 percent ad valorem.

The submitted sample is not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding this ruling, contact National Import Specialist, Richard Foley at (212) 637-7089.

Sincerely,

Robert Swierupski
Director,

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