HQ 082782: Woman's athletic shoe with polyurethane upper; foxing or foxing-like bands

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 082782

                        February 6, 1990

CLA-2 CO:R:C:G 082782  WAW

CATEGORY:  Classification

TARIFF NO.:  6402.99.1560

Mr. Bernie Feuer
Hanbee America, Inc.
175 Anderson Avenue
Moonachie, N.J.  07074

RE:  Woman's athletic shoe with polyurethane upper; foxing or
     foxing-like bands

Dear Mr. Feuer:

     Your letter dated May 27, 1988, addressed to our New York
office concerning the tariff classification of a woman's athletic
shoe, has been referred to this office for a classification
ruling under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).

FACTS:

     The sample article is a woman's athletic shoe with a
polyurethane upper that is stitched to a unit molded cupsole
bottom.  In addition, a plastic piping has been stitched around
the entire shoe along the base of the cupsole bottom.  Both the
upper and the piping device have been stitched onto the outsole.

ISSUE:

     Whether the subject merchandise has a foxing-like band which
would preclude its classification under subheading 6402.99.15,
HTSUSA?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     The issue we are asked to address is whether the footwear in
question has a foxing-like band.  The function of a foxing is to
reinforce or supplement the juncture between the sole and upper
of footwear.  Customs has ruled that for the purpose of
computing the exterior surface area of an upper, the upper is
everything from just below the insole level.  See T.D. 70-
238(19), T.D. 81-79 and Headquarters Ruling Letter 051937c, dated
June 6, 1977.  Additionally, Customs has ruled that 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 the
outsole initially meet, measured on a vertical plane.  If this
vertical overlap is less than 1/4 inch, such footwear is presumed
not to have a foxing-like band. See Treasury Decision (T.D.) 83-
116, 17 Cust. Bull. 229 (1983).

     Furthermore, Customs has determined that the juncture which
the foxing-like band must cover to preclude classification under
subheading 6402.99.15, HTSUSA, is at a point just below the
insole level.  In the instant case, however, a foxing-like band
does not exist because the upper of the shoe does not extend down
to a point below the insole level and as a result the sides of
the molded cupsole bottom do not overlap the upper at this point.
Accordingly, it is Customs position that the subject merchandise
does not have a foxing-like band and is classifiable under
subheading 6402.99.15, HTSUSA.

HOLDING:

     The sample woman's athletic shoe is classifiable under
subheading 6402.99.1560, HTSUSA, which provides for other
footwear with outer soles and uppers of rubber or plastics, other
footwear, other, 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).
The applicable rate of duty is 6% ad valorem.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division