HQ 953864: Footwear, athletic, women's; Band, foxing-like; NYRL 880859 revoked

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 953864 
                                 
                          July 7, 1993  

CLA-2  CO:R:C:M  953864 DFC 

CATEGORY:  Classification 

TARIFF NO.:  6402.99.15   

William J. Maloney, Esq. 
Rode & Qualey
Attorneys at Law 
295 Madison Avenue
New York, N.Y. 10017 
 
RE:  Footwear, athletic, women's;  Band, foxing-like;  NYRL
     880859 revoked 

Dear Mr. Maloney: 

     In a letter dated April 13, 1993, on behalf of Pagoda
Trading Company, you asked that New York Ruling Letter (NYRL)
880859 dated December 14, 1992, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of a women's athletic shoe be reconsidered.  A
sample of the shoe along with a sample of a separate sole were
submitted for examination.  

FACTS: 

     The sample, pattern 47454W, is a women's athletic shoe with
a plastic upper and a unit-molded sole.  This shoe has an upper
of which over 90% of the external surface area, including
accessories and reinforcements, is rubber or plastics.

      In NYRL 880859, you were advised that pattern 47454W is
classifiable under subheading 6402.99.70, HTSUS, which provides
for other footwear with outer soles and uppers of rubber or
plastics, other footwear, having a foxing or foxing-like band
applied or molded at the sole and overlapping the upper, other,
valued over $3 but not over $6.50/pair.  The applicable rate of
duty for this provision is 90 cents/pr plus 37.5% ad valorem. 

     Classification under subheading 6402.99.70, HTSUS, was based
on a determination that the shoe has a unit-molded sole which
overlaps the upper by 1/4 inch or more around 49% of the
perimeter of the upper.  Consequently, following the "40-60"
rule, the overlap was considered to constitute a foxing-like band
because it substantially encircled the upper.  See HQ 953035
dated April 14, 1993. 


                               -2- 

     You claim that the unit-molded sole of pattern 47454W
overlaps the upper by 1/4 inch or more for 34.6% of the perimeter
of the upper based on a measurement of the separate sole by a
private laboratory.  Therefore, you maintain that the shoe does
not possess a foxing-like band  and is properly classifiable 
under subheading 6402.99.15, HTSUS, 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, not having a foxing or a foxing-
like band applied or molded at the sole and overlapping the
upper, other.  The applicable rate of duty for this provision is
6% ad valorem. 

ISSUE: 

     Does pattern 47454W possess a foxing-like band?

LAW AND ANALYSIS: 

        The "40-60" rule as it is referred to, is a guideline
used by Customs import specialists to assist in making a
determination pertaining to encirclement.  Generally, under this
rule, an encirclement of less than 40% of the perimeter of the
shoe by the band does not constitute foxing or a foxing-like
band.  An encirclement of between 40% to 60% of the perimeter of
the shoe by the band may or may not constitute a foxing or a
foxing-like band depending on whether the band functions or looks
like a foxing.  An encirclement of over 60% of the perimeter of
the  shoe by the band is always considered substantial
encirclement.  See T.D. 92-108. 

     In HQ 088510 dated April 29, 1991, Customs ruled that when a
shoe was submitted with a separate sole, a determination of
substantial encirclement would depend on a measurement of the
separate sole.  A measurement of the sample sole was conducted by
a Customs laboratory [Report no. 3-93-21070-002 dated June 21,
1993] which found that the sole overlapped the upper by 1/4 inch
or more around 33% of the perimeter of the shoe.  Inasmuch as the
unit-molded sole overlaps less than 40% of the perimeter of the
shoe, a foxing-like band does not exist, and the shoe is properly
classifiable as claimed under subheading 6402.99.15, HTSUS.  









                             -3-    

HOLDING:

     The women's  athletic shoe, pattern 47454W, is dutiable at
the rate of 6% ad valorem under subheading 6402.99.15, HTSUS. 

     NYRL 880859 dated December 14, 1992 is revoked. 
 

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division