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HQ 084342

August 9, 1989

CLA-2 CO:R:C:G 084342


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.


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.


Does the sample boot possess a foxing-like band?


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.


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.


John Durant, Director

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