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HQ 083453


January 19, 1990

CLA-2 CO:R:C:G 083453 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.4045

Mr. Ike Matitia
International Seaway Trading Corp.
6680 Beta Drive
Mayfield Village, Ohio 44143

RE: Tariff Classification of "Sno Joggs" boots made in Korea

Dear Mr. Matitia:

This is in response to your letter of December 15, 1988, requesting a tariff classification of "Sno Joggs" boots, made in Korea, under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was included for our examination.

FACTS:

The merchandise in question is a woman's boot, approximately 9 inches in height. The boot has a unit molded rubber sole with sidewalls that are a 1/2 inch high at the front and 1 inch high at the heel. The polyurethane upper is stitched to the top of this sidewall about 1/4 inch above the midsole. The boot has a textile lining and an adjustable velcro closure on the shaft.

ISSUE:

Whether the boot at issue has a foxing-like band which would preclude its classification under subheading 6402.91.40, HTSUS?

LAW AND ANALYSIS:

Subheading 6402.91.40, HTSUS, which provides for 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 accessories and reinforcements) 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 3 cm above the top of the outer sole are entirely of non-molded construction formed by
sewing the parts together and having 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.

The footwear at issue appears to fit into this subheading, the only question being whether the sidewall is considered to be a foxing-like band. The function of a foxing-like band is to reinforce or supplement the juncture between the sole and the upper of footwear. The characteristics of a foxing-like band are defined in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983). In this decision it is stated that 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 plane overlap is less than 1/4 inch, such footwear is presumed not to have a foxing-like band.

The upper of the boot at issue does not overlap the outsole. The upper meets the outsole at the toe area but does not overlap it. Around the rest of the boot there is a gap of 1/2 inch between the upper and the outsole. For this reason, the sidewall cannot be considered a foxing-like band.

HOLDING:

The "Sno Joggs" boots are classifiable in subheading 6402.91.4045, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having uppers of which over 90% of the external surface area (including accessories and reinforcements) 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 3 cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and having 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...for women. The rate of duty is 6% ad valorem.

Sincerely,

John Durant, Director

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