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HQ 087928


January 3, 199l

CLA-2 CO:R:C:G 087928 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15

Ms. Jean Maguire
Area Director of Customs
New York Seaport
6 World Trade Center
New York, New York 10048

RE: Request for reconsideration of Headquarters Ruling Letter (HRL) 087847 dated September 26, 1990, concerning the tariff classification of a low-cut boy's athletic shoe. Band, foxing-like; Overlap; Encirclement, substantial

Dear Ms. Maguire:

In a memorandum dated October 9, 1990, you asked that we reconsider the result reached in the subject letter.

FACTS:

The shoe in issue has a plastic upper. The bottom of the shoe is rubber and plastics and is of unit molded construction. Our examination of the sample reveals that while the toe bumper overlaps 30 percent of the perimeter of the upper by more than 1/4 inch, the overlap of the upper along the remaining perimeter of the shoe measures approximately 1/16 inch or slightly more.

In HRL 087847 dated September 26, 1990, Customs held that the above-described low-cut boy's athletic shoe, Stock no. 73238, was classifiable under subheading 6402.99.15, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other footwear with outer soles and uppers of rubber or plastics, other, not covering the ankle, and not having a foxing-like band. The applicable rate of duty is 6 percent ad valorem.

You assert that the shoe has a foxing-like band because the toe bumper overlaps about 30 percent of the perimeter of the upper by more than 1/4 inch while the remainder of the bottom overlaps the upper by 1/16 inch or more. Consequently, the footwear should have been classified under subheading 6402.99.7090, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, not covering the ankle, having a foxing-like band, and valued over $3 but not over 6.50 per pair. The applicable rate of duty is 90 cents per pair plus 37.5 percent ad valorem.

ISSUE

1. Application of the "high point" rule

2. Does the shoe possess a foxing-like band?

LAW AND ANALYSIS:

The rationale expressed for finding a foxing-like band appears to have its origin in C.S.D. 83-103 which set forth an interpretation of the phrase "soles which overlap the upper other than at the toe or heel." C.S.D. 83-103 reads in pertinent part as follows:

It is our position that the phrase "soles which overlap the upper other than the toe or heel" should be interpreted in the light of the following criteria:

(1) The sole must extend over and cover part of the upper.

(2) In measuring overlap when the overlap is uniform, only one cut is to be made in the shoe, and that cut is to be made at the edge where the ball of the foot would normally rest. If the overlap is not uniform, the cut should be made at the point where the greatest amount of overlap occurs.

(3) A sole will be considered to overlap the upper if a vertical overlap of 1/16 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 1/16 inch, the sole is presumed not to overlap the upper.

The criteria set out in C.S.D. 83-103 were not intended to be guidelines for determining the existence of foxing-like bands. They set forth a method for determining whether particular shoes have "soles which overlap the upper other than at the toe or heel." Specifically, a sole is presumed not to overlap the upper if the overlap is less than 1/16 inch. With unit molded footwear in adult sizes an overlap of 1/16 inch is not sufficient to create a foxing-like band.

We have no objection to use of the "high point" rule. However, we favor a reasonable approach in applying the rule. In this instance and in two other instances it appears the rule was misapplied. We cite as examples the footwear which was the subject of HRL 083097 dated December 22, 1988, and HRL 085934 dated June 6, 1990. In both instances there was an overlap by the sole in the toe area of over 1/4 inch which covered less than 40 percent of the perimeter of the shoes. The overlaps of the remaining perimeters of these shoes were so slight as to be negligible. The "high point" rule should not be applied where it can be determined without much difficulty that a 1/4 inch overlap by the sole occupies less than 40 percent of the perimeter of the shoe as is the case here. It is our observation that the "high point" rule would be primarily relied on in those situations where there are multiple variations in the amount of overlap and measurement would require numerous cuts at various places along the perimeter of the shoe.

You ask if our ruling mandates that all the overlap measure 1/4 inch? If so, how many measurements must be made? If the 1/4 inch overlap in an adult size shoe is uniform, it must cover at least 40 percent of the perimeter of the shoe to be considered a substantial encirclement of the shoe. However, where there are variations in overlap, e.g., 1/4 inch to 3/16 inch to 1/4 inch to 1/8 inch, the high point rule applies and the overlap will be treated as if it were 1/4 inch. We can not set down a hard and fast rule as to how many measurements must be made.

You inquire as to whether our ruling mandates that 100 percent of the upper be overlapped by 1/4 inch in order to satisfy the substantial encirclement requirement of T.D. 83-116? Our ruling does not mandate that 100 percent of the upper be overlapped by 1/4 inch in order to satisfy the substantial encirclement requirement of T.D. 83-116. We have no objection to the 40-60 rule which has been in effect for sometime.

You point out that a unit molded bottom requires a cupping radius to provide adequate adhesion between upper and bottom. Without the cupping radius (which is what accounts for the 1/16 inch overlap in this shoe) the upper and bottom will separate easily. In view of this fact you ask whether our ruling now mandates that the term foxing-like requires nearly the same qualities or characteristics and appearance as the traditional foxing? It appears that you are suggesting that a cupping radius of 1/16 inch constitutes a foxing-like band. It should be noted that in T.D. 83-116 the domestic interests argued that "the cupping radius in unit molded footwear is indicative of 'foxing or a foxing-like band.'" Our position with respect to this argument was that unit molded footwear does not, per se, contain foxing or a foxing-like band. The rationale for this position was stated as follows:

Inasmuch as the foxing on the traditional sneaker or tennis shoe visibly overlapped the upper, Customs must necessarily conclude that unit molded footwear with plastic uppers do not, per se, have the type of visible outside foxing contemplated by the statute and consequently do not fall within the parenthetical exception.

It should be noted that the first characteristic of a foxing-like band listed in T.D. 83-116 provides that "[t]he term 'foxing like' applies to that which has the same or nearly the same appearance, qualities or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. It is our opinion noting this characteristic of a foxing-like band that our ruling mandates that a foxing-like band have the same qualities or characteristics and appearance as the traditional foxing. It appears to us that a unit molded bottom with a cupping radius of 1/16 inch or less would not exhibit a visible outside foxing resembling the foxing on the traditional sneaker or tennis shoe, and would limit its ability to reinforce the joint between the sole and upper which is the primary function of traditional foxing.

HOLDING:

For the reasons stated above it remains our position that the low cut boy's athletic shoe, Stock no. 73238, which was the subject of HRL 087847 dated September 26, 1990, was properly classified under subheading 6402.99.15, HTSUSA.

Sincerely,

Harvey B. Fox,

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