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HQ 088068


February 1, 1991

CLA-2 CO:R:C:G 088068 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.70

Ms. Joan Wilde
Millfeld Trading Co., Inc
150 Woodbury Road
Woodbury, New York 11797

RE: Reconsideration of New York Ruling Letter (NYRL) 855978 dated September 18, 1990, concerning the tariff classification of a child's athletic style shoe. Footwear, children's, athletic; Band, foxing-like; Overlap; Encirclement, substantial

Dear Ms. Wilde:

In a letter dated October 10, 1990, you asked us to reconsider the result reached in NYRL 855978 dated September 18, 1990, concerning the tariff classification of a child's athletic style shoe produced in China.

FACTS:

The sample submitted, pattern #CC2217, is a child's athletic shoe with a plastic upper and a unit molded plastic sole. A sample unit molded sole in a larger size which is used with this shoe was also submitted. The child's shoe has a toe bumper which overlaps by more than 1/4 inch 38.3 percent of the perimeter of the upper while the toe bumper of the larger sole sample would overlap 37.3 percent of the perimeter of its upper.

In NYRL 855978 Customs ruled that this shoe was properly classifiable under subheading 6402.91.70, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, having a foxing-like band, other, valued over $3 but not over $6.50/pair. The applicable rate of duty is 90 cents per pair plus 37.5 percent ad valorem.

ISSUE:

Does the shoe possess a foxing-like band?

LAW AND ANALYSIS:

In T.D. 83-116 Customs published guidelines which listed certain characteristics of a foxing-like band. The seventh characteristic which is relevant here reads as follows:

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.

The Customs Service in Headquarters Ruling Letter (HRL) 087098 dated June 12, 1990, held that children's shoes having an overlap of 1/8 inch or more should be considered as having foxing-like bands even though during the formulation of the guidelines the discussions leading to the 1/4 inch rule were concerned with adult sizes and never took into consideration infants' and children's shoes. The rationale for this position is that those shoes which are proportionately smaller than adults' would not have a 1/4 inch overlap even though they were identical to adult shoes which clearly had foxing because of the amount of their overlap. Thus, the overlaps necessary to be considered foxing-like bands should be expected to vary from just under 1/4 inch down to something above de minimus.

An examination of the sample child's shoe reveals that the sole overlaps the upper by 1/8 inch to over 1/4 inch over 80 percent of the perimeter of the shoe. Consequently, following the rule set forth in HRL 087098, the sample possesses a foxing-like band.

HOLDING:

The child's athletic shoe is classifiable under subheading 6402.91.70, HTSUSA. NYRL 855978 is affirmed.

Sincerely,

John Durant, Director

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