Footwear, athletic; Band, foxing-like

HQ 087873 December 8, 1990 CLA-2 CO:R:C:G 087873 DFC CATEGORY: Classification 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