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HQ 952365


December 10, 1992

CLA-2 CO:R:C:M 952365 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

District Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, Wisconsin 53237-0260

RE: Protest No. 3701-92-100016; Child's moon boot; GRI 1; foxing-like band; T.D. 83-116

Dear Sir:

This is in response to the Application for Further Review of Protest No. 3701-92-100016 dated March 3, 1992, which pertains to the tariff classification of a child's moon boot, style #8302, under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the child's moon boot was submitted for examination.

FACTS:

The footwear under consideration is a child's moon boot, style #8302. This boot is a lace up boot with a removable liner. The upper is constructed of plastic material in blue, red, yellow and green colors. The sole is made from unit molded plastic which was manufactured in a two-shot molding process. This process produced a white molded shell bottom, the sides of which extend up from the sole approximately 7/8 of an inch to 1 1/8 of an inch. The second step of the molding process produced a 3/16 of an inch blue band which encircles the entire perimeter of the shell's side wall.

Upon importation into the U.S., you liquidated the child's moon boot under subheading 6402.91.70, which provides for "Other footwear with outer soles and uppers of rubber or plastics... Other footwear...Covering the ankle...Other...Other...Valued over $3 but not over $6.50/pair....." This classification was based on the premise that the child's moon boots possessed a foxing- like band.

The protestant, Kohls Department Stores Inc., contend that the child's moon boot is properly classified under 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 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 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 protestant states that in New York Ruling (NY) 871161 dated February 12, 1992, style #8302 was not considered to have a foxing-like band and, therefore, was classified under subheading 6402.91.40, HTSUS. The protestant does note that NY 871161 was issued after liquidation of the child's moon boot under consideration and to another party. Specifically, NY 871161 classified childrens' over the ankle moon boots with outer soles and uppers of rubber or plastic. In NY 871161, style #8302 was described as a five eyelet lace up with a molded cupsole bottom, and sidewalls measuring from the top of the outer sole that are less than three centimeters high. In addition, there was a gap of approximately three-eighth inch between the bottom edge of the polyurethane upper and the top of the outer sole. NY 871161 did not describe the sole of the boot, so it is impossible to determine if the boot in NY 871161 is the same as the boot in this case.

ISSUE:

Does the child's moon boot, style #8302, possess a foxing- like band?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretations (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes."

The child's moon boots are classified under subheading 6402.91, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics..Other footwear...Covering the ankle...." Classification to the eight digit subheading level is dependent upon whether the child's moon boots have a foxing or foxing-like band.

The issue of whether moon boots possess a foxing-like band was discussed in Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983). The type of moon boot involved in T.D. 83-116 is constructed with a pre-molded rubber/plastic shell bottom, the sides of which extend up to 4 inches from the sole. In moon boots of this type, the shell bottom is generally stitched to a polyurethane upper. Some moon boots have an additional feature such as a lip or ridge in the form of a band molded on to the shell bottom. In determining that the above described moon boots do not possess a foxing or a foxing like band, T.D. 83-116 stated that:

An analysis of the parenthetical exception indicates that for the design feature in the form of a band to be considered a foxing-like band, it must be molded at the sole and must also overlap the upper. It is noted that for definitional purposes, the sole and upper can be separately conceived. However, in actuality, that portion of the shell bottom where the design feature is placed is an integral part of the combined sole and upper. The design feature molded in the shell bottom can be considered as being molded at the sole because part of the feature lies below the point where the sole/upper juncture would ordinarily be. However, this design feature cannot be said to overlap the upper because it is an integral part of the combined sole and upper. Consequently, the design feature described cannot be considered a foxing-like band for tariff purposes.

In the instant case, the child's moon boot has a white molded shell bottom, the sides of which extend up from the sole approximately 7/8 of an inch to 1 1/8 of an inch. A 3/16 of an inch blue band which encircles the entire boot is molded over the shell bottom approximately 1/8 of an inch above the sole. The plastic upper is stitched to the shell bottom directly above the blue band. The blue band is positioned above the point where the foot would rest. Therefore, it is in fact part of the upper. Additionally, the blue band does not cover the juncture of the plastic upper and the sole; it does not "overlap the upper." Therefore, as the blue band does not overlap the upper because it is part of the upper, the child's moon boot does not possess a foxing-like band.

HOLDING:

The child's moon boot is properly classified under 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 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 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...."

This protest should be granted. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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