HQ 087873: Footwear, athletic; Band, foxing-like

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 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