HQ 084342: Tariff Classification of a child's winter boot made in Italy

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 084342

                                   August 9, 1989

          CLA-2  CO:R:C:G  084342

          CATEGORY: Classification

          TARIFF NO.: 6402.91.4075

          Ms. Sherri L. Zaelit
          Alpex s.r.l.
          P.O. Box 25004
          Salt Lake City, Utah 84125

          RE: Tariff Classification of a child's winter boot made in Italy

          Dear Ms. Zaelit:

               Your letter dated April 17, 1989, addressed to our New York
          office concerning the tariff classification of a child's winter
          boot, has been referred to this office for a direct reply to you.
          A sample was submitted for examination.

          FACTS:

               The sample child's winter boot or moon boot has a measurable
          gap between the bottom edge of the plastic upper and the top of
          the outer sole.  The sidewall of the cup sole overlaps the
          plastic upper all around the boot.

               It has been suggested that this type of construction be
          considered a foxing-like band for tariff purposes because the
          boot bottom here is very different from those of the original
          moon boots which were the subject of T.D. 81-79, 15 Cust Bull.
          191 (1981).  Specifically, in T.D. 81-79, the sidewalls of the
          molded bottoms were 4 inches high, whereas the sidewall of the
          instant sample is approximately 1 inch high.  Since this sidewall
          is so much lower, it differs greatly from the original moon boot
          bottom design and it more closely resembles a traditional sneaker
          or boot bottom with a vulcanized foxing tape.  Because of the
          variation in design from the original moon boot, it is submitted
          that Customs should now rule that boots of this type have a
          foxing-like band unless there is a minimum gap of at least 1 inch
          between the point at which the upper would normally turn under
          the insole and the point at which the upper actually ends.


















                                         -2-
          ISSUE:

               Does the sample boot possess a foxing-like band?

          LAW AND ANALYSIS:

               The function of a foxing is to reinforce or supplement the
          juncture between the sole and upper of footwear.  We have ruled
          that for the purposes of computing the exterior surface area of
          an upper, the upper is everything just below the insole level.
          See T.D. 70-238(1(), T.D. 81-79 and Headquarters Ruling Letter
          051937c dated June 6, 1977.  Implementation of a 1 inch gap rule
          here would compel us to change our interpretation of what
          constitutes an upper.  It appears to us that the application of a
          different definition for the term "upper" in this situation is
          unwarranted and is inconsistent with previous rulings.  As to the
          boot involved, that juncture which the foxing-like band must
          cover to preclude classification under subheading 6402.91.4045,
          HTSUSA, is at a point just below the insole level.  In this
          instance a foxing-like band does not exist because the upper of
          the boot does not extend down to this point and as a result the
          sides of the shell bottom do not overlap the upper at this point.

          HOLDING:

               The sample boot is classifiable under subheading
          6402.91.4075, HTSUSA, as 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.
          The applicable rate of duty for this provision is 6 percent ad
          valorem.

                                     Sincerely,




                                     John Durant, Director
                                     Commercial Rulings Division






















          6cc AD NY Seaport
          1cc Eric Francke NY Seaport
          1cc John Durant
          1cc Legal Reference