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HQ 954767

October 29, 1993

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


TARIFF NO.: 6404.19.70

Sheryl L. Williams
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.


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.


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


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Even though the TSUS was superseded by the HTSUS, effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear.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.

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.

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.


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


John Durant, Director
Commercial Rulings Division

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