HQ 0088510 - Band, foxing-like; Overlap on infant's and children's footwear with unit molded soles; "high point" rule - United States International Trade Commision Rulings

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HQ 088510

April 29, 1991

CLA-2 CO:R:C:M 088510 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: N/A

Peter T. Mangione, President
Footwear Distributors and Retailers of America 1319 F Street N.W.
Washington, D.C. 20004

RE: Band, foxing-like; Overlap on infant's and children's footwear with unit molded soles; "high point" rule

Dear Mr. Mangione:

In a letter dated January 15, 1991, you asked that we reconsider the "high point" rule and the permissible degree of vertical overlap on childrens' and infants' footwear with unit molded soles.

FACTS:

"HIGH POINT" RULE"

The "high point" rule had its origin in Headquarters Ruling Letter (HRL) 069886 dated June 22, 1983, which was published as C.S.D. 83-103, 17 Cust. Bull. 948 (1983). This ruling set forth an interpretation of the phrase "soles which overlap the upper other than at the toe or heel." It reads in pertinent part as follows:

It is our position that the phrase "soles which overlap the upper other than at 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.

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."

OVERLAP IN CHILDREN'S AND INFANT" SHOES

In HRL 087098 dated June 12, 1990, Customs ruled that children's shoes having an overlap of 1/8 inch or more and infant's shoes having an overlap of 1/16 inch or more should be considered to have a foxing-like band.

ISSUE:

1. Should the "high point" rule be revoked or modified?

2. Should the amount of overlap for finding the presence of a foxing-like band on children's or infant's footwear with unit molded bottoms be increased?

LAW AND ANALYSIS:

ISSUE NO 1

Briefly, it is your position that the "high point" rule should not be applied to unit molded bottoms in order to determine the presence of foxing-like bands for the following reasons:

(1) this rule did not appear in T.D. 83-116;

(2) it was developed for an entirely different purpose; and

(3) its use substantially alters the principles of T.D. 83-116.

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." The fact that the "high point" rule was not enunciated in T.D. 83-116, and, was not developed to determine the existence of a foxing-like band does not preclude its use in certain circumstances. The application of the rule is reasonable in those situations where variations in the amount of overlap on unit molded footwear makes measurement of overlap impractical due to the amount of cutting necessary to make such a determination. It is our understanding that the various ports do not have the personnel or the time to conduct such a procedure.

However, in the recent past certain importers of footwear have submitted samples of completed footwear along with their separate unit molded soles. In this situation no cutting would be required because the amount of overlap could be readily measured based on an examination of the completed footwear and their separate unit molded soles. In the event that the importer does not submit separate unit molded soles for measurement, application of the "high point" rule would be appropriate when variations in the amount of overlap are apparent.

ISSUE NO. 2

You argue that our rule pertaining to the permissible degree of overlap on children's and infants' footwear is unreasonable and will work a substantial hardship on importers of children's and infants' shoes. You claim that the rule is unreasonable because it ignores the other characteristics of this footwear. You assert that if the ruling is allowed to stand, virtually all infants' and most children's footwear with unit molded bottoms will be deemed to have foxing-like bands. Further, the bottoms of this footwear though athletic in nature do not have the appearance of the foxing appearing on the traditional sneaker or tennis shoe. These shoes have the appearance of jogger-type or other non-sneaker footwear.

During the formulation of the guidelines the discussions leading to the 1/4 inch rule were concerned with adult sizes and never took into consideration infants' and children's shoes. Generally, those shoes which are proportionately smaller than adults' 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 their overlap. This position is clearly not unreasonable. However, inasmuch as we have taken the position that an overlap of 1/16 inch is a cupping radius and does not constitute an overlap, the amount of overlap necessary to create a foxing-like band must be increased for both children's and infants' footwear. It is now our position that infants' shoes having an overlap of 1/8 inch or more and children's shoes having an overlap of 3/16 inch or more around 40 percent of their perimeters may possess foxing-like bands.

You point out correctly that while Customs took into account proportionality in determining the permissible overlap in children's and infants' footwear, it refused to do so in HRL 079591 dated April 18, 1988. There the inquirer argued that if the term "at the toe" is interpreted to mean a horizontal overlap of 2-1/2 inches on children's footwear, the degree of horizontal overlap should increase in proportion to size. We are willing to entertain further proposals from you on this matter since we now agree that the amount of horizontal overlap allowable should be based on size. However, at this time we do not concur with the bumper allowances stated in the inquirer's letter of January 16, 1987.

HOLDING:

The "high point" rule is modified with respect to its application. Specifically, samples of complete shoes submitted along with separate samples of their unit molded soles will not be subject to the "high point" rule. Samples of completed footwear without samples of their unit molded soles will be subject to application of the "high point" rule in those instances where variations in the amount of overlap are apparent.

Children's shoes having an overlap of 3/16 inch or more and infants' shoes having an overlap of 1/8 inch or more may be considered to have foxing-like bands.

Sincerely,

Harvey B. Fox, Director

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