CLA-2 CO:R:C:G 088068 DFC
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.
-2-
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.
-3-
HOLDING:
The child's athletic shoe is classifiable under subheading
6402.91.70, HTSUSA. NYRL 855978 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division
cahill library/peh
088068
6cc AD NY Seaport
1cc Eric Francke NY Seaport
1cc DD Los Angeles
1cc Legal Reference