HQ 084049: Tariff classification of a basketball shoe made in Taiwan.

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 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
















                                         -2-


          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.











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               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
                                Commercial Rulings Division  










































          6cc AD NY Seaport
          1cc Eric Francke NY Seaport
          1cc John Durant
          1cc DD Portland Maine
          1cc DD Boston Mass
          1cc A. Cataldo Boston Mass