HQ 954767: Footwear; Boots, diving; Scuba boots; Bands, foxing-like; T.D. 83-116, HRL's 072551, 074429; 6404.19.35

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 954767 

                        October 29, 1993 

CLA-2  CO:R:C:M  954767  DFC

CATEGORY:  Classification 

TARIFF NO.:  6404.19.70  

Sheryl L. Williams 
President
Deep See Inc.
18935 59th Avenue, N.E. 
Arlington, WA.  98223 

RE:  Footwear;  Boots, diving; Scuba boots; Bands, foxing-like;
     T.D. 83-116, HRL's 072551, 074429; 6404.19.35 

Dear Ms Williams:

     This is in reply to your letter dated July 14, 1993, to the 
U.S. Customs Service in New York, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS), of a neoprene diving boot produced in Taiwan. 
Your letter, together with the sample boot submitted, was
referred to this office for a reply.    

FACTS:

     The sample diving boot, (item #9438), will be imported as a 
finished product and will be used primarily by skin divers and
scuba divers. 

     The ankle-high upper of this boot is made from neoprene
rubber (90% by weight) with knitted nylon (10% by weight)
laminated to both sides.  Its rubber sole is vulcanized (baked
with the use of adhesive) to the upper. It is a pull-on type boot
without a zipper or other closure.  This boot has a foxing-like
band which results from the large roll-up of the calendered sole
onto the upper.  

ISSUE:

     What is the tariff classification of diving boot #9438
having a foxing-like band?




                              -2- 

LAW AND ANALYSIS:

     After careful consideration of numerous comments submitted
by footwear importers and domestic shoe industry, by a document
published as T.D. 83-116 in the Federal Register of May 23, 1983
(48 Fed. Reg 22904, 17 Cust Bull 229 (1983)), the Customs Service
set forth:  

     (1) Customs position regarding the proper interpretation of
the provisions in the Tariff Schedules of the United States
(TSUS) pertaining to imported footwear having foxing or a foxing-
like band applied or molded at the sole and overlapping the
upper, and (2) guidelines relating to the characteristics of
foxing and a foxing-like band.  
               
     Even though the TSUS was superseded by the HTSUS, effective
January 1, 1989, the guidelines of T.D. 83-116 are still followed
by Customs with regard to the classification of footwear.
     
     T.D.  83-116 set forth guidelines relating to the
characteristics of a foxing-like band.  Those characteristics
read, as follows: 

     1.   The term "foxing-like" applies to that which has the
          same, or nearly the same appearance, qualities, or
          characteristics as the foxing appearing on the
          traditional sneaker or tennis shoe.  

     2.   A foxing-like band need not be a separate component. 

     3.   A foxing must overlap the upper and the overlap must be
          readily discernible.   

     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. 

     6.   A foxing-like band may be attached by any means. 

     7.   Unit molded footwear is considered to have a foxing-
          like band if a vertical overlap of 1/4 inch or more
          exists from where the upper and the outsole initially
          meet, measured on a vertical plane.  If this vertical
          overlap is less than 1/4 inch, such footwear is
          presumed not to have a foxing-like band.





                              -3- 

     In HRL 072551 dated August 29, 1983, Customs ruled that
certain slip-on shoes with fabric uppers and "rolled soles"
possessed a foxing-like band.  In HRL 074429 dated July 24, 1984,
Customs also found that the same construction on a scuba boot
constituted a foxing-like band.  

     Although the above-cited rulings were decided under the
Tariff Schedules of the United States, Congress has appropriately
indicated that earlier rulings must not be disregarded in
applying the Harmonized Code.  The conference report to the
Omnibus Trade Bill, states that " . . . on a case by case basis
prior decisions should be considered instructive in interpreting
the HTS, particularly where the nomenclature previously
interpreted in those decisions remains unchanged and no
dissimilar interpretation is required by the text of the HTS." 
H. Rep. No. 100-576, 100th Cong., 2D Sess. 548 (1988) at 550.    

     Inasmuch as the sample boot has a rolled-up sole, it is
considered to possess a foxing-like band.  Therefore, it is
classifiable under subheading 6404.19.70, HTSUS, which provides
for footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of textile materials, footwear
with outer soles of rubber or plastics, other, other, other.  The
applicable rate of duty for this provision is 90 cents per pair
plus 37.5% ad valorem. 
     
     In Headquarters Letter (HQ) 954550 dated July 7, 1993, which
was an information letter, you were advised that diving boots
imported with rubber soles, without zippers or any other upper
fastening are classifiable under subheading 6404.19.35, HTSUS,
which provides for footwear with outer soles of rubber or
plastics, other, footwear of the slip-on type, that is held to
the foot without the use of laces or buckles, or other fasteners,
except footwear having a foxing or foxing-like band wholly or
almost wholly of rubber or plastics applied or molded at the sole
and overlapping the upper, other.   The applicable rate of duty
for this provision is 37.5% ad valorem. 















                               -4-

     Although not all diving boots possess a foxing-like band, we
believe that the diving boot which was the subject of HQ 954550
possessed a foxing-like band which precluded its classification
under subheading 6404.19.35, HTSUS.  As with the sample in issue,
that diving boot is properly classifiable under subheading
6404.19.70, HTSUS. 

HOLDING:

     Diving boot #9438 is classifiable under subheading
6404.19.70, HTSUS.




                                   Sincerely,


                                   John Durant, Director         
                                   Commercial Rulings Division