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NY M83517




June 7, 2006

CLA-2-64:RR:NC:SP:247 M83517

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.60; 6402.99.70

Mr. Robert Butler
Innovative Custom Brands, Int’l
1350 Broadway, Suite 1604
New York, NY 10018

RE: The tariff classification of footwear from China

Dear Mr. Butler:

In your letter dated May 12, 2006 you requested a tariff classification ruling for an infant’s size 5 shoe, identified as sample # ICB-214IN.

The submitted sample is an athletic-type shoe that does not covers the wearer’s ankle. The shoe has a functionally stitched rubber/plastic material upper with a padded tongue, a lace closure and a cemented and sewn-on unit-molded rubber/plastic bottom with sidewalls that overlap the upper around the entire lower perimeter of the shoe. We have determined that a vertical overlap of the upper by the sole exists on this infant’s size 5 shoe that is at least 1/8-inch and more around most of the shoe’s lower perimeter.

In T.D. 83-116 Customs published guidelines that listed the characteristics of a foxing-like band. Footwear with a unit molded sole 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. In subsequent rulings (i.e., Headquarters Ruling Letter 088510, dated April 29, 1991) Customs has held that infant’s shoes having an overlap of 1/8 inch or more and children’s shoes having an overlap of 3/16 inch or more around at least 40 percent of their perimeters may posses foxing-like bands. The rationale for this position is that those shoes, which are proportionately smaller than adult’s shoes 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 overlap. Examination of the submitted infant’s size 5 shoe reveals that the sole overlaps the upper by at least 1/8 inch to as much as 1/4 inch around at least 60 percent or more of the perimeter of the shoe, which readily constitutes a substantial encirclement of the upper by a foxing. We consider this shoe to have a foxing-like band. The shoe therefore, is precluded from classifiable under subheading 6402.91.40, HTSUS, as you have suggested. We will presume that this shoe will be valued not over $3 per pair.

The applicable subheading for this infants’ shoe, identified as sample # ICB-2141N, will be 6402.99.60, Harmonized Tariff Schedule of the United States (HTSUS), which provides for footwear, in which both the upper’s and outer sole’s external surface is predominately rubber and/or plastics; which is not “sports footwear”; which does not cover the ankle; in which the upper’s external surface area measures over 90% rubber or plastics (including any accessories or reinforcements); which has a foxing or a foxing-like band applied or molded at the sole and overlapping the upper; which is not designed to be a protection against water, oil, or cold or inclement weather; and which is valued not over $3.00 per pair. The rate of duty will be 48% ad valorem. If the shoe is valued over $3 but not over $6.50 per pair, the applicable subheading will be 6402.99.70, HTSUS, and the rate of duty will be 90 cents per pair plus 37.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. We note that the sample shoe you have provided for this ruling request has not been marked with its country of origin. Therefore, if imported as is, the shoe does not meet the country of origin marking requirements of the marking statute and will be considered not legally marked.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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