HQ 089219: Athletic footwear; substantial encirclement; foxing-like band

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 089219

                          May 29, 1991


CLA-2 CO:R:C:M  089219  NLP

CATEGORY:  Classification

TARIFF NO.: 6402.99.60-90

John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, NY  10017

RE:  Athletic footwear; substantial encirclement; foxing-like
     band

Dear Mr. Pellegrini:

     This is in response to your letter dated March 12, 1991, on
behalf of Avia International Group, Inc., requesting a tariff
classification ruling under the Harmonized Tariff Schedule of the
United States (HTSUSA) for an athletic shoe which will be
produced in Taiwan or China.  A sample was submitted for our
examination.

FACTS:

     The sample, style number 1312, is a man's low-top athletic
shoe with a rubber and plastic outsole.  The upper is vinyl but
for the textile embroidery on the outside quarter, which
represents less than 10 percent of the external surface area of
the upper.  The outsole 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
approximately 20 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.  At the back of the
shoe 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 40 percent of the
perimeter of the shoe.

     It is your opinion that the sample is classifiable under
subheading 6402.99.15, HTSUSA, which provides for other footwear
with outer soles and uppers of rubber or 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 a 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 have a foxing-like band.

LAW AND ANALYSIS:

     T.D. 83-116 lists the characteristics of foxing and foxing-
like bands.  The relevant characteristics are 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
               platform wraps.

     You state that the sample does not possess a foxing-like
band for the following reasons:

          1.   The toe bumper portion of the outsole overlaps
               approximately 20 percent of the perimeter of the
               shoe.  Since the outsole does not overlap any
               other part of the upper there is no substantial
               encirclement.

          2.   The heel stabilizer overlaps the upper but it is
               not applied or molded at the sole.  It is applied
               to a separate wedge.  Furthermore, the heel
               stabilizer encircles 38 percent of the shoe's
               perimeter.

          3.   A heel stabilizer is a separate component which
               satisfies characteristic 7 listed above and as
               such is not considered a foxing or 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
that when encirclement is between 40 and 60 percent, a foxing-
like band exists when the bottom of the shoe has the appearance
of a foxing on a traditional sneaker or tennis shoe.

     Finally, 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 they may not be combined for
that purpose, the footwear at issue does not possess a foxing-
like band.

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

     By our measurement, a total overlap of 1/4 inch or more by
the lateral stabilizer and the sole exists around 60 percent of
the upper.  Although the term "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 more than a
toe bumper.  See, HRL 087873, dated December 8, 1990, where
Customs ruled 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.

     It is our opinion, that the instant footwear has a foxing
like band and it is classifiable in subheading 6402.99.60,
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.

HOLDING:

     The instant athletic footwear is classifiable in subheading
6402.99.60-90, HTSUSA.  The rate of duty depends on value per
pair.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division