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HQ 964647





June 22, 2001

CLA-2 RR:CR:TE 964647 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.90, HTSUSA

Mr. Robert B. Silverman
Grunfeld, Desiderio, Lebowitz
Silverman & Klestadt, LLP
245 Park Avenue
33rd Floor
New York, NY 10167-3397

RE: Binding Ruling Request; Classification of a Woman’s Slip on Dress Shoe; Modified California Construction; Foxing Band; Subheading 6404.19.90, HTSUSA.

Dear Mr. Silverman:

This letter is in response to your request for a binding ruling, dated September 5, 2000, on behalf of your client Wolff Shoe Company Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a woman’s slip-on dress shoe.

FACTS:

The article under consideration is a woman’s slip-on dress shoe identified as style Claudia. It has a textile upper and a plastic/rubber outer sole and heel. The toe is closed and it has a heel that is approximately two inches high. The portion of the upper covering the wearer’s heel is leather, and the upper vamp is composed of elasticized textile material. The shoe has a plastic band that extends upwards from the juncture of the upper and the outer sole. The band covers approximately ¼ inch of the upper. It does not cover the joint between the upper and the outer sole.

The shoe is constructed using what is known as a modified slip-lasted or “California” construction. California construction involves stitching the upper to a sock lining forming a kind of bag into which a last is forced. A wedge wrap is then stitched to the juncture of the upper and the sock lining. The wedge wrap is then pulled down, covering a wedge or mid-sole, and then folded under and secured to the top surface of the outer sole.

The construction of the style Claudia is similar to that of the California construction. The upper and the sock lining are stitched together in the same manner as footwear of California construction. However, instead of a wedge wrap, a plastic band that is approximately one inch wide is stitched to the upper, approximately 1/8th of an inch above the juncture of the sock lining and the upper. The plastic band is then pulled down over the juncture of the upper and sock lining, folded under the sock lining and cemented to the top surface of the outer sole. The band clearly encircles over 60% of the perimeter of the shoe. There is no wedge or substantial mid-sole between the outer sole and the sock lining.

ISSUE:

Is a plastic band that (1) overlaps approximately ¼ of an inch of the upper, (2) is folded down so that it covers the juncture of the upper and sock lining, (3) is secured to the top surface of the outer-sole, and (4) does not cover the joint between the outer sole and the upper, a foxing band?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The tariff provisions under consideration are subheading 6404.19.35, HTSUSA, which provides, in part, for:

Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other:
Footwear . . . of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other.

The applicable duty rate is 37.5% ad valorem. The other potential provision under which the footwear may be classified is subheading 6404.19.90, HTSUSA, which provides, in part, for:

Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other:
Other:
Valued over $12/pair.

The applicable duty rate is 9% ad valorem.

Because subheading 6404.19.35, HTSUSA, excludes footwear that has a foxing band, it is necessary to determine if the plastic strip that secures the textile upper to the rubber outer sole constitutes a foxing band. If so, the shoe will be classified under subheading 6404.19.90, HTSUSA, which does not exclude footwear with foxing bands.

In Treasury Decision (T.D.) 83-116, which was published in the Federal Register May 23, 1983 (48 FR 22904), Customs issued the following guidelines relating to the characteristics of foxing and foxing-like bands as an aid to Customs officers in classifying specific footwear constructed with foxing.

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 as in the B.F. Goodrich definition of foxing previously cited. 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 belted 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 mud guard 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.

The plastic band on the Claudia possesses six of the eight characteristics listed in T.D. 83-116. A significant feature of a foxing band that is absent in the Claudia, is that a foxing band usually covers the joint between the upper and the outer sole (feature #2). However, there is no requirement that a band cover the joint in order to qualify as a foxing band. In some footwear, such a band may be considered a foxing band if it meets the “B.F. Goodrich” definition of a foxing band. Under the “B.F. Goodrich” definition, a foxing band is described as:

A thin narrow strip of material wrapped around the shoe upper, where it is joined with the outsole, which is folded under before attaching the outsole to the upper.

T.D. 83-116 (citing B.F. Goodrich, Canvas Rubber and Koriseal Footwear Definitions, (1978)).

The band on the Claudia satisfies the B.F. Goodrich definition of a foxing band. The plastic band substantially encircles the shoe. From the point where the band is stitched to the upper, it extends down over the upper to the juncture of the upper and the sock lining at which point the band folds under the juncture and is cemented to the top surface of the outer-sole. Because of this construction, measuring from the top of the band to the point where it meets the outer-sole, the band covers approximately ¼ inch of the upper.

However, even though the band on the Claudia satisfies the B.F. Goodrich definition of a foxing band, in T.D. 83-116 Customs provided a “Summary of Customs Position” wherein Customs stated that “footwear of slip-lasted (California) construction does not possess foxing or a foxing-like band for tariff purposes.” Thus, if Customs “Position” includes footwear of “modified” California construction, the band encircling the Claudia is not a foxing band.

In Headquarters Ruling Letter (HQ) 076205, dated May 30, 1985, Customs considered whether a stadium boot “constituted [footwear of] ‘California’ construction of the type that was held in T.D. 83-116 to have neither a foxing nor a foxing-like band.” In this ruling, Customs described the California construction as being
characterized by the attachment by sewing of three components: the upper, the sockliner and the platform wrap. This attachment generally occurs along a single point of attachment: the lasting allowance. A last is then inserted into the shoe, and platform wrap is pulled tight around an insole, to which it is cemented. The outsole is then attached, completing the shoe.

In HQ 076205, Customs was considering a stadium boot for the second time. The first time the boot was examined by Customs, it was found to have a foxing or foxing-like band. Regarding the first version of the boot, Customs stated that:

An examination of the original sample revealed that while the upper and sockliner had been sewn along the allowance, the wedge wrap had been sewn at a point roughly ¼ inch higher on the upper away from the lasting allowance. Inasmuch as a true California construction must have the three critical components sewn to each other (upper, sockliner and wedge wrap), we do not view the original sample as being a true California Construction.

Subsequently, the boot was modified using the California construction method so that it would not have a foxing or foxing-like band. Upon consideration for the second time, Customs stated:

However, you have modified the original sample so that the wedge wrap has been attached to the upper at the lasting allowance and is also sewn to the sockliner. Consequently, the modified sample is a true California construction which is not considered to have a foxing or a foxing –like band.

Accordingly, pursuant to Customs decision in HQ 076205, if the wedge wrap is attached at the juncture of the sock liner and the upper, it is of California construction and does not have a foxing band. However, if the wedge wrap is attached above the juncture of the sock liner and the upper so that it overlaps the upper, it is not of California construction and may have a foxing band. The plastic band on the Claudia attaches to the upper approximately ¼ inch above the juncture of the upper and the sock lining. Because the band covers the upper, the Claudia more closely resembles the stadium boot as originally submitted than it does the second version of the stadium boot. The Claudia is not of California construction as described in HQ 076205.

In HQ 087165, dated August 20, 1990, Customs again addressed its “Position” in T.D. 83-116, that footwear of California construction does not possess a foxing band. Customs stated that:

A fair reading of the entire document reveals that the slip-lasted [California] exclusion applied only to casual shoes of that type of construction. It should be noted that the only reason for this exclusion is that the domestic interests insisted that the "popsicle" women’s slipper, at that time the shoe imported in the largest quantity, should be found to have a foxing-like band at the point where the wedge wrap was stitched to the upper. This was considered an erroneous position, and so the slip-lasted (California) exclusion was written into the Guidelines to make it clear that these shoes were not to be dutiable at the higher rate.

In considering T.D. 83-116 in its entirety, Customs further limited it’s “Position” regarding footwear of California construction, by explaining that it pertained specifically to footwear known as the “popsicle.”

In its analysis, Customs described footwear constructed with the California (slip-lasted) method as follows: The slip-lasted shoe is usually casual in design, made with an unlined upper, low wedge heel and platform sole of resilient material. After the upper and sock lining have been sewn together, the platform cover is sewn to this unit. The platform cover is in two pieces, one to cover the forepart platform and a wider piece to cover the wedge heel.

Not only is the Claudia not of the “popsicle” style, but it is not constructed in the same manner as the footwear of California construction as described in HQ 087165.

Definitions describing footwear of California construction contain the common feature that the shoe has a platform or a wedge that is wrapped. For instance, The American Footwear Industries Association describes slip-lasted (California) Construction as follows:

[T]he shoe embodies a number of oddities which permit its identification as a separate entity.

First, the midsole, which is known as a platform, is extraordinarily thick; as a result, the shoe features a great depth of external soling. Second, this platform is wrapped with a ribbon of the upper material.

The platform and, therefore, the wrapper, may extend either the full length of the shoe or a fraction thereof, corresponding to varieties of the construction.

American Footwear Industries Association, Footwear Construction, Methods of Identification. See also, HQ 087165, supra; HQ 076205, supra. The Claudia does not have a wedge or platform and therefore there is no wedge or platform wrap. Additionally, in footwear of California construction the wedge wrap is sewn at the juncture of the upper and the socklining and then pulled down over the wedge or platform. The effect of this is that the material of the upper is not covered and there is no appearance of a foxing or foxing-like band.

Additionally, a mud guard can also be considered a foxing band. T.D. 83-116 (characteristic #8).

A mud guard 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.

This description of a mud guard is similar to the band on the Claudia.

In HQ 952467, dated March 2, 1994, Customs relied upon it’s position that a mud guard can be considered a foxing to find that an infant’s high-top sneaker had a foxing band. The shoe was described as having “a blue wave-shaped overlay that is stitched to the upper and folded under the upper before attaching to the outsole.” Customs regarded the “plastic strip” as similar to a “mud guard” or a “foxing under” which T.D. 83-116 considered to be foxing bands. See Characteristics of a Foxing, nos. 2 & 8. The band on the Claudia is not only similar to a mud guard, but it is very similar to the “blue wave-shaped overlay” that Customs found to be a foxing band.

In T.D. 93-88, dated October 25, 1993, 27 Cust. B. & Dec. No. 46, Customs defined a foxing-like band by first excluding footwear that does not have a foxing-like band. Customs provided that if there is a gap between the upper and the sole in which you can stick the point of a pen, and this can be done around 60% or more of the shoe, then it does not have a foxing-like band. However, Customs noted that: “this description assumes that the piece of material, which covers the foot, is the one that is attached to the sole.” The component in the Claudia attaching the upper to the sole is not the upper, it is the plastic band which does not “cover the foot.” Therefore, it is not precluded from being a foxing, or foxing like band, as described in T.D. 93-88.

Style Claudia, because it has a foxing band, is classified under subheading 6404.19.90, HTSUSA, which provides, in part, for: Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $12/pair.

HOLDING:

The style Claudia is classified in subheading 6404.19.90, HTSUSA. The general column one duty rate 9% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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