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HQ 088240


February 13, 1991

CLA-2 CO:R:C:M 088240

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Ms. Linda Carey
Leif J. Ostberg, Inc.
401 Hamburg Turnpike,
Suite 305,
Wayne N.J. 07470

RE: Footwear, athletic. Band, foxing-like; encirclement, substantial.

Dear Ms. Carey:

In a letter dated October 18, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an athletic shoe produced in China. A sample was submitted for examination.

FACTS:

The sample is an over-the-ankle athletic shoe with a unit- molded plastic bottom and a PU upper with PVC overlays. There are four synthetic overlays covered by clear plastic pieces. The overlays are composed of woven synthetic strips which adhere to a synthetic backing. We note that there is less than 10 percent textile in the external surface area of the upper.

ISSUE:

1. Application of the "high point" rule.

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

LAW AND ANALYSIS:

T.D. 83-116 set forth certain guidelines relating to the characteristics of a foxing-like band. Those characteristics which are relevant in this instance read as follows:

4. A foxing-like band must be applied or molded at the sole and must overlap the upper.

5. A foxing-like band must encircle or substantially encircle the entire shoe.

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.

An examination of the sample shows that the toe bumper overlaps the upper by more than 1/4 inch over 25 percent of the perimeter of the shoe. The "wave" configuration on the side of the shoe overlaps the upper by another 8 percent of the perimeter of the shoe by over 1/4 inch at its "crest" only. The remaining overlap of the upper by the sole is 1/16 inch or less.

It has been suggested that the sample possesses a foxing- like band because of varying amounts of vertical overlap along the perimeter of the shoe. It should be noted in those instances where there are variations in overlap, the "high point" rule may comes into effect. Briefly, this rule means that when the degree of vertical overlap on a unit molded bottom varies, the amount of vertical overlap is considered to be at the "highest point."

A foxing-like band is presumed not to exist when it encircles less than 40 percent of the perimeter of the shoe. In this instance a foxing-like band does not exist because the overlap of the upper by the sole is 1/16 inch or less over at least 65 percent of the perimeter of the shoe. 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. Further, those portions of the shoe which appear to simulate the appearance of foxing do not qualify as such because they fail to sufficiently overlap the upper.

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 opinion that the "high point" rule should 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.

HOLDING:

The sample athletic shoe is classifiable under subheading 6402.91.40, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, 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

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