HQ 086589: Reconsideration of New York Ruling Letter (NYRL) 847959 dated December 21, 1989, concerning the tariff classification of Avia's ARC 610W athletic shoe.

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 086589

                                     June 25, 1990


            CLA-2 CO:R:C:G 086589 DFC

            CATEGORY: Classification

            TARIFF NO.: 6402.91.9060

            Lindsay, Hart, Neil & Weigler
            Lawyers
            Suite 1800
            222 S.W. Columbia
            Portland, Oregon 97201-6618

            RE:  Reconsideration of New York Ruling Letter (NYRL) 847959
                 dated December 21, 1989, concerning the tariff
                 classification of Avia's ARC 610W athletic shoe.

            Dear Gentlemen:

                 In a letter dated February 23, 1990, you asked for a
            reconsideration of NYRL 847959 dated December 21, 1989,
            concerning the tariff classification of Avia's ARC 610W
            athletic shoe.

            FACTS:

                 The Avia ARC 610W is a high-cut running shoe.  The upper
            is of plastic with a small amount of textile inserts and trim.
            The textile comprises less than 10 percent of the external
            surface area of the upper, even after adding back the trim.
            The bottom consists of a molded rubber/plastic outsole and
            midsole which you state are cemented to each other prior to
            their being cemented as a unit to the upper.  The bottom
            overlaps approximately 84 percent of the perimeter of the
            upper by amounts varying from minimal to approximately 3/4
            inch.

                 In NYRL 847959 Customs took the position that the
            ARC 610W was properly classifiable under subheading
            6402.91.9060, Harmonized Tariff Schedule of the United States
            Annotated (HTSUSA), as other footwear with outer soles and
            uppers of rubber or plastics, covering the ankle, other,
            valued over $12/pair.

















                                          -2-


                 It is your position that the ARC 610W does not possess a
            foxing-like band and should be classified under the subheading
            6402.91.4045, HTSUSA, as other footwear with outer soles and
            uppers of rubber or plastics, other footwear, covering the
            ankle, 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 chapter 64, HTSUS) is
            rubber or plastics except (1) footwear having a foxing or a
            foxing-like band applied or molded at the sole and overlapping
            the upper and (2) except footwear (other than footwear having
            uppers which from a point 3cm above the top of the outer sole
            are entirely of non-molded construction formed by sewing the
            parts together and exposed on the outer surface a substantial
            portion of functional stitching) 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.

            ISSUE:

                 Does the ARC 610W possess a foxing-like band?

            LAW AND ANALYSIS:

                 With respect to defining the term "foxing-like band",
            T.D. 83-116 stated in pertinent part as follows:

                      Specifically, in using the term "foxing-like band",
                      it is apparent that Congress intended to include
                      rubber and plastic footwear that is not constructed
                      with a traditional separate functional foxing.  For
                      example, certain injection molded sneakers have
                      foxing-like bands.  Upon completion there exists a
                      strip which covers what appears to be (but is not
                      in fact) the joint between the upper and the sole.

                 You argue that if the band involved does not cover what
            appears to be (but is not in fact) the joint, it is not a
            "foxing-like" band within the meaning of the exception.
            Specifically, the "foxing-like band" which is a grey
            extension of the midsole extends upwards, overlapping the
            upper.  However, it is molded in such a way that "what appears
            to be . . . the joint between the upper and the sole" is below
            it, that is, it extends upwards from the joint, rather than
            covering the joint.  You explain that this is accomplished
            through a clear indentation at the apparent top of the midsole
            platform, and the midsole wrap is seen as one of a succession
            of five overlapping layers of the upper, rather than as a piece
            that covers the joint.













                                          -3-


                 In view of the above analysis you conclude that the
            "ARC 610's midsole wrap does not mimic 'foxing', as the
            exception uses that term, and therefore does not fall within
            the exception."

                 We do not agree with your analysis.  Your attention is
            invited to T.D. 83-116 which lists seven characteristics of
            a foxing-like band. The fourth characteristic which is relevant
            here reads as follows:

                      4. A foxing-like band must be applied or
                         molded at the sole and must overlap the upper.

                 Also, under Customs Position that document provides that:

                         An analysis of the parenthetical exception
                         indicates that for the design feature in the
                         form of a band to be considered a foxing-like
                         band, it must be molded at the sole and must
                         also overlap the upper.

                 The instant sample has a foxing-like band because the band
            in fact is molded at the sole and overlaps the upper at that
            point which is the crucial element in determining the presence
            of a foxing-like band.  It is our observation that this type of
            construction does mimic foxing.  Specifically, T.D. 83-116 in
            discussing the definitions of foxing reads in pertinent part as
            follows:

                         With rubber-soled canvas upper shoes, foxing is
                         usually a strip of rubber covering the joint
                         between the sole and upper.  The Art and Science
                         of Footwear Manufacturing (American Footwear
                         Industries Association 1974).

                         A thin narrow strip of material wrapped around the
                         shoe upper, where it is joined with the outsole
                         which is folded under before attaching the outsole
                         to the upper. B. F. Goodrich Company pamphlet
                         entitled "Canvas Rubber and Koroseal Footwear
                         Definitions" (1959).

                         The above-cited definitions encompass the
                         commercial or trade understanding of foxing.
                         However, it is contended that the B.F. Goodrich
                         definition does not fall within the exclusionary
                         language because the strip does not overlap the
                         upper, which connotes an extension from one
                         location to another.  It is Customs












                                          -4-


                         view that the B. F. Goodrich definition satisfies
                         the exclusionary language because the strip can
                         be considered as being applied at the sole noting
                         that it is folded under at the juncture of the
                         sole and upper and it does extend upward thus
                         overlapping the upper.

                 It is our position based on the B.F. Goodrich definition
            of foxing set out above that the construction of the ARC 610W
            does mimic the B.F. Goodrich definition of foxing inasmuch as
            the band extends upwards from the joint (overlapping the upper)
            rather than covering it.

                 You state that a foxing-like band is not present on the
            610W because the band does not substantially encircle the
            shoe.  Specifically, in order to consider the shoe as being
            substantially encircled one must include the toe piece.
            However, to do so requires that one regard the toepiece and
            midsole wrap as the same design element.  But the toepiece is
            visually and as a design element distinct from the midsole
            wrap; it is in fact a wrap from the sole itself, and is not
            part of the "band" defined by the midsole wrap.

                 We do not make any distinction between the sole and the
            midsole for the purpose of determining the presence of a
            foxing-like band.  In this instance the sole including the
            midsole overlaps approximately 84 percent of the perimeter of
            the upper by amounts varying from minimal to approximately 3/4
            inch.

            HOLDING:

                 The ARC 610W possesses a foxing-like band and is
            classifiable under subheading 6402.91.9060, HTSUSA, as other
            footwear with outer soles and uppers of rubber or plastics,
            covering the ankle, other, valued over $12/pair. NYRL 847959
            is affirmed.

                                        Sincerely,


                                        John Durant, Director
                                        Commercial Rulings Division