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HQ 084049


June 09, 1989

CLA-2 CO:R:C:G 084049

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.60-90

James F. O'Hara
Law Offices
Stein Shostak Shostak & O'Hara
Suite 1240
3580 Wilshire Blvd
Los Angeles, Ca. 90010-2597

RE: Tariff classification of a basketball shoe made in Taiwan.

Dear Mr. O'Hara:

In your letter dated February 10, 1989, you inquired as to the dutiable status of a basketball shoe. A sample pair of shoes has been submitted for examination. One of the shoes has been disassembled so that the outsole, midsole and lasted shoe upper are individually distinguishable.

FACTS:

The sample submitted is a Nike "Air Jordan" over-the-ankle athletic shoe designated as model 4363. The external surface area of the upper is of plastic with two exceptions. These two exceptions are the textile liner where it becomes topline trim, and the two textile side panel inserts, which have plastic mesh inserts overlaying them. You inform us that the external surface area of the upper is over 90 percent plastics. The shoe has a molded plastic midsole containing plastic air cylinders and a molded rubber/plastic outsole. The midsole overlaps all of the periphery of the upper except the toe. The outsole overlaps the upper at the toe and also for a short distance at the outside middle of the foot. Together the midsole and outsole overlap the entire periphery of the upper by measurements varying from 1/4 to 5/8 of an inch.

You claim that this footwear is classifiable under subheading 6402.91.4015, Harmonized Tariff Schedule of the United States (TSUSA), as 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 any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) 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 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.

ISSUE:

Does the shoe possess a foxing-like band which would preclude its classification under subheading 6402.91.4015, HTSUSA?

LAW AND ANALYSIS:

T.D. 83-116 is relevant to this issue. It reads in pertinent part as follows:

Unit molded footwear is considered to have as 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.

You maintain that a foxing-like band does not exist because the overlap of the upper by the outsole represents approximately 40 percent of the periphery of the upper. Further, the additional overlap of the upper is by the midsole which is not the type of overlap contemplated by previous definitions of a foxing-like- band.

At the time T.D. 83-116 was written insoles did not overlap uppers and this type of construction was not anticipated. However, it is our observation with respect to this construction that the midsole and the outsole function as a unit. Together, they form the "bottom" of the shoe. They will probably be cemented/vulcanized to each other and then cemented/vulcanized as a single unit to the upper. However, even if the midsole is attached to the upper separately, and then the outsole to the midsole (and to the upper), the overlap in both still functions in exactly the way a foxing is supposed to function, by improving the attachment of sole to upper. As to the appearance of a foxing, it is our view that a two-color band with a wavy top edge looks every bit as much like a foxing as a one-color band with a straight top edge.

It should be noted that the sample is not considered to be legally marked because the elastic band attached to the tongue covers the country of origin label.

HOLDING:

The sample shoe possesses a foxing-like band and is classifiable under subheading 6402.91.60-90, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, other, and dutiable at a rate depending on value per pair.

Sincerely,

John Durant, Director

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