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HQ 952227




October 19, 1992

CLA-2 CO:R:C:M 952227 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.50

District Director
United States Customs Service
300 South Ferry St.
Room 2017
San Pedro, CA 90731

RE: Protest and Request for Further Review No. 2704-92-100452; infant's shoes with canvas uppers and calendered rubber outer soles; vulcanized rubber tape; foxing-like band; HRL 089964; subheading 6404.19.35

Dear Sir:

The following is our response to the Protest and Request For Further Review No. 2704-92-100452, dated January 17, 1992, concerning the classification of infant's footwear under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Style 64563N is an infant's shoe that has a canvas upper. The shoe has a calendered rubber outer sole with a separate rubber tape vulcanized to the edge of the sole and on to the fabric. A plastic decal of Ariel, "The Little Mermaid", is on the shoe's toe section.

Upon importation, the footwear was liquidated in subheading 6404.19.50, HTSUS, which provides for "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: [f]ootwear with outer soles of rubber or plastics: [o]ther: [o]ther: [v]alued not over $3/pair: [o]ther." The rate of duty is 48% ad valorem.

It is the protestant's position that the infant's footwear should be classified in subheading 6404.19.35, HTSUS, which provides for "[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: [f]ootwear with outer soles of rubber or plastics: [o]ther:

[f]ootwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and 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: [o]ther." The rate of duty is 37.5% ad valorem.

ISSUE:

Does the infant's footwear have a foxing or a foxing-like band?

LAW AND ANALYSIS:

Protestant cites Headquarters Ruling Letter (HRL) 089964, dated December 6, 1991, as the basis for the position that the infant's shoes should not be considered to have foxing-like bands. It is the protestant's argument that the infant's shoes are constructed using a sole mold and they contain soles which overlap the uppers less than 1/4 of an inch.

HRL 089964 dealt with whether the term "unit molded footwear", as used in T.D. 83-116, should include footwear with direct or simultaneous molded bottoms. HRL 089964 held that:

Footwear with pre-formed bottoms and footwear with direct or simultaneous molded bottoms are both included within the scope of the term "unit molded footwear" as used in the seventh guideline for foxing-like bands. The language used in T.D. 83-116 was clear as to the scope of the term "unit molded" bottoms and was never qualified in any manner. For this reason, the exclusion of footwear with direct or simultaneous molded bottoms from application of the 1/4 inch rule is not warranted.

However, it is our position that the rule regarding unit molded footwear discussed in HRL 089964 has no bearing on the classification of the footwear under consideration here because shoe style 64563N has a calendered sole with a separate rubber tape vulcanized to the edge of the sole and on to the fabric upper. The tape measures approximately 1/2 inch in width and encircles the perimeter of the shoe. This is traditional foxing construction. Inasmuch as the infant's footwear has a foxing it is classified in subheading 6404.19.50, HTSUS.

HOLDING:

The protest should be denied in full. 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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