HQ 085765: Footwear from Spain

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 085765
                      January 5, 1990

CLA-2 CO:R:C:G  085765 SLR

CATEGORY: Classification

TARIFF NO.: 6404.19.70

Ms. Wendy Wojnar Percival
Asst. Customs/Freight Mgr.
Kinney Shoe Corporation
233 Broadway
New York, New York 10279-0099

RE: Footwear from Spain

Dear Ms. Percival:

     This ruling is in response to your letter of September 6,
1989, requesting the proper classification of ladies' canvas
upper, rubber sole footwear under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).  Samples were provided
for our examination.

FACTS:

     The two submitted samples are of nearly identical
construction, shape and method of attachment of the molded
plastic/rubber outsoles.

     Style #1.992 is a women's low-heel shoe.  It is of the slip-
on type with an upper of canvas (textile), an elasticized band
going across the instep measuring approximately 1-1/2 inches in
width and 2 inches in length, a textile/paperboard insole, and
an outsole of rubber/plastics that has been formed and attached
to the upper by a single molding process, overlapping the upper
by approximately 3/16 of an inch all around the shoe.

     Style #5935 is a women's low-heel shoe.  It is of the slip-
on type with an upper of canvas (textile), an elasticized band
going across the instep measuring approximately 3 inches in width
and 1-1/2 inches in length, a textile/cork insole and an outsole
of rubber/plastics that has been formed and attached to the upper
by a single molding process, overlapping the upper by
approximately 1/4 inch all around the shoe.

ISSUE:

     Do both styles of shoes possess a foxing-like band?

                              -2-

LAW AND ANALYSIS:

     The HTSUSA does not include a definition of a "foxing-like
band."  Likewise, no trade understanding or commercial
designation for the term exist.  Customs, nonetheless, in
T.D. 83-166, 17 Cust. Bull. 229 (1983), at page 248, set forth
guidelines relating to the characteristics of a foxing-like band.
They are as follows:

     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 upper 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 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.

     The two subject samples meet the first six criteria stated
above.  There seems to be some question, however, as to the
application of the above-mentioned 1/4 inch height requirement.
That requirement, however, only applies to footwear with unit
molded bottoms.

     Unit molding encompasses two distinct manufacturing
processes.  In pre-molded construction, a pre-formed molded unit
sole is separately attached to the upper after lasting.

     Here, the subject shoes have outsoles that are constructed
and attached by a simultaneous molding process.  The molded
soles, at the time of their formation, were molded directly to
the assembled and lasted uppers.  The 1/4 inch height
requirement, therefore, is of no consequence to this case.
Both styles of shoes do, in fact, exhibit foxing-like bands.


                              -3-

HOLDING:

     The subject merchandise is classifiable under subheading
6404.19.70, HTSUSA, which provides for footwear with outer soles
or rubber, plastics, leather of composition leather and uppers of
textile materials: Footwear with outer soles of rubber or
plastics: Other: Other: Valued over $3 but not over $6.50/pair:
Other.  The applicable rate of duty is $.90 per pair and
37.5 percent ad valorem.


                                Sincerely,


                                John Durant, Director
                                Commercial Rulings Division