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HQ 088443


May 24, 1991

CLA-2 CO:R:C:M 088443 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Footwear, athletic; Band, foxing-like; Overlap; Encirclement, substantial

Dear Mr. Pellegrini:

In a letter dated January 8, 1991, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain athletic footwear which will be manufactured in China and /or Indonesia. A sample shoe along with its separate sole was submitted for examination.

FACTS:

The sample, "Altitude II," is a high-top athletic shoe with a plastic upper, the external surface area of which is assumed to be less than 10 percent textile, and a unit molded plastic bottom.

You assert that a foxing-like band is not present because the overlap of the upper by the sole does not substantially encircle the entire shoe. Consequently, you claim that the "Altitude" is classifiable under subheading 6402.91.40, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other, covering the ankle, and not having a foxing-like band.

ISSUE:

Does the overlap of the upper substantially encircle the shoe?

Does the sample 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. The characteristic which is relevant in this instances reads as follows:

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

By our measurement the sole overlaps the upper by 1/4 inch or more around approximately 31 percent of the periphery of the upper. The remaining overlap measures 1/16 inch around 69 percent of the periphery of the upper. We have taken the position that an overlap of 1/16 inch is a cupping radius and does not constitute an overlap for purposes of determining substantial encirclement. An overlap of 31 percent of the periphery of the shoe by 1/4 inch or more is not considered "substantial encirclement" of the entire shoe. Consequently, the sample shoe does not possess a foxing-like band.

HOLDING:

Footwear represented by the sample is dutiable at the rate of 6 percent ad valorem under subheading 6402.91.40, HTSUSA.

Sincerely,

John Durant, Director

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