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HQ 963418





March 1, 2002

CLA-2 RR:CR:TE 963418 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.7090

John B. Pellegrini, Esquire
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Reconsideration of NY E83224; Footwear with Foxing-like Band; T.D. 83-116; T.D. 93-88

Dear Mr. Pellegrini:

This is in response to your request dated July 26, 1999, on behalf of your client, Humberto Vidal, Incorporated, for reconsideration of New York Ruling Letter (NY) E83224, dated July 8, 1999, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a child's shoe made in China. The sample submitted with the original ruling request was retained and reexamined in connection with this reconsideration. We regret the delay in responding.

FACTS:

In NY E83224, the footwear at issue here, identified by style number H9545, was classified in subheading 6402.99.70, HTSUSA, which provides for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $3 but not over $6.50/pair." The sample shoe is a three eyelet, lace-up casual shoe which does not cover the ankle, and which has an upper and outer sole that are composed of rubber/plastic material. The shoe is marked with a sticker on the insole heel area and bottom of the sole with the number 27 (a European size corresponding to American children's size 9-1/2). Although information submitted with the initial ruling request stated that the shoe had a unit-molded bottom which overlapped the upper by less than 3/16 of an inch, Customs examination of the sample
revealed that the overlap exceeded 3/16 of an inch. NY E83224 states that "[t]his shoe does possess a foxing-like band since the unit-molded sole overlaps the upper by more than 3/16 of an inch."

ISSUE:

Whether shoe style no. H9545 possesses a "foxing" or "foxing-like" band so as to be properly classified in subheading 6402.99.70, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Chapter 64, HTSUSA, covers footwear, gaiters and the like, and parts of such articles. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, Customs published Treasury Decision (T.D.) 93-88, dated October 25, 1993, which contains certain footwear definitions used by Customs import specialists to classify footwear. The definitions were provided merely as guidelines and, although consulted here, are not to be construed as Customs rulings. In pertinent part, the typical “foxing band” was said to be “a rubber tape, about 1 inch high by 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outer sole.” The term “foxing-like band” was defined as “a band around a substantial portion of the lower part of the upper which either has been attached (cemented, sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole.”

On May 23, 1983, Treasury Decision 83-116, dated May 6, 1983, was published in the in the Federal Register (48 FR 22904), and contains Customs issuance of guidelines relating to the characteristics of foxing and foxing-like bands as an aid to Customs officers in classifying specific footwear constructed with foxing. We noted that 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), and that if the overlap is less than 1/4 inch, the footwear is presumed not to have a foxing-like band.

The size and intended user of footwear also affect determinations as to whether the overlap of a unit-molded sole constitutes a foxing or foxing-like band. In Headquarters Ruling Letter (HQ) 087098, dated June 12, 1990, Customs ruled that children's shoes having an overlap of 1/8 of an inch or more, and infants' shoes having an overlap of 1/16 of an inch or more, were considered to have a foxing-like band. In HQ 088510, dated April 29, 1991, Customs re-examined the extent of overlap on footwear for infants and children, adopting the position that infants' shoes having an overlap of 1/8 of an inch or more, and children's shoes having an overlap of 3/16 of an inch or more (around at least 40 percent of their perimeters) may possess foxing-like bands. (See also, HQ 951093, dated May 6, 1992, and HQ 952467, dated March 2, 1994.)

In your request for reconsideration, you contend that the footwear at issue does not possess a foxing-like band, and therefore should be classified in subheading 6402.91.40, HTSUSA, the provision 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...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...." Although the provision you have cited is not applicable to the footwear at issue (which does not cover the ankle), we will consider the merits of your contention that style H9545 does not possess a foxing-like band.

You assert that the subject merchandise imported is footwear in youths and boys sizes 12 to 4, sizes which would require an overlap of 1/4 of an inch or more to support a finding that footwear possesses a foxing-like band. You also state:

NY E83224 determined that the overlap for Style No. H9545 exceeded 3/16 inch. Presumably, it did not exceed 1/4 inch. Our measurement is that the overlap is less than 3/16 of an inch and certainly less than 1/4 inch.

We note that no sample was submitted in connection with your reconsideration request. The size of any sample shoe you or your client may have measured is not noted, and a precise figure for the measurement noted immediately above - said to be "certainly less than 1/4 inch" - is not provided. You assert that the subject merchandise consisted of youths' and boys' footwear, sizes 12 to 4, a matter of which Customs National Commodity Specialist Division was not aware, since the sizes in that range are larger than any children's size, and larger than the children's size 9-1/2 sample shoe provided with the initial ruling request. NY E83224 stated that the unit-molded sole overlapped the upper by more than 3/16 of an inch, sufficient to find that the children's size 9-1/2 shoe did possess a foxing-like band.

HOLDING:

NY E83224, dated July 8, 1999, is hereby affirmed.

The shoe identified by style no. H9545 possesses a foxing-like band and is classified in subheading 6402.99.7090, HTSUSA, which provides for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $3 [three dollars] but not over $6.50/pair [six dollars fifty cents per pair], Other: Other." The general column one duty rate is 90 cents per pair plus 37.5 percent ad valorem.

Sincerely,


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