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

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