CLA-2 CO:R:C:G 087873 DFC
TARIFF NO: 6402.99.90
Mr. James P. Sullivan, Esq.
Sullivan & Lynch, P.C.
156 State Street
Boston, Massachusetts 02109
RE: Footwear, athletic; Band, foxing-like
Dear Mr. Sullivan:
In a letter dated August 22, 1990, you inquired as to the
tariff classification of a man's athletic shoe under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample was submitted for examination.
FACTS:
The sample man's athletic shoe, style CXT 770, has a
rubber/plastic bottom and a plastic upper of which less than 10
percent of the external surface area, comprised of the topline
trim and the accessories and reinforcements, is textile. The
bottom consists of a molded outsole, a two-piece (front and
rear) midsole which approximates the look of a jogger midsole,
and a hard plastic lateral stabilizer which overlaps the upper
in the back and has a horizontal surface which extends forward
on the sides between the mid and outsole.
It is your opinion that the sample shoe is classifiable
under subheading 6402.99.15, HTSUSA, as other footwear with
outer soles and uppers of rubber or plastics, 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).
ISSUE:
Should the lateral stabilizer be considered as being
"applied or molded at the sole."?
- 2 -
Does the shoe possess a foxing-like band?
LAW AND ANALYSIS:
T.D. 83-116 lists seven characteristics of a foxing-like
band. The fourth and fifth characteristics which are relevant
here read as follows:
4. A foxing-like band 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.
An examination of the sample reveals that the toe bumper
overlaps the upper by well over 1/4 inch. Also, it overlaps
slightly over 41 percent of the perimeter of the upper.
Further, the lateral stabilizer which we consider a foxing-like
band overlaps by 1/4 inch or more an additional 46 percent of
the perimeter of the upper. Together, the toe bumper and the
lateral stabilizer overlap approximately 87 percent of the
perimeter of the shoe. Our rationale for considering the
stabilizer to be "applied or molded at the sole" as well as
foxing-like is the fact that it has horizontal extensions at
both sides which are cemented to the midsole and the outsole
clearly making it a part of the sole and therefore a part of the
overlap of the upper. In both appearance and function the
lateral stabilizer is foxing-like.
HOLDING:
The sample shoe is classifiable under subheading
6402.99.90, HTSUSA, as other footwear with outer soles and
uppers of rubber or plastics, having a foxing-like band applied
or molded at the sole and overlapping the upper, other, other,
with duty at the rate of 90 cents per pair plus 20 percent ad
valorem based on the assumption that the footwear is valued over
$12 per pair.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc AD NY Seaport
1cc Dist Dir Boston
1cc Eric Francke NY Seaport