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HQ 082782

February 6, 1990

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


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).


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.


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


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.


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.


John Durant, Director

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