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HQ 087847


September 26, 1990

CLA-2 CO:R:C:G 087847 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15

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

RE: Request for reconsideration of New York Ruling Letter (NYRL) 854935 dated August 22, 1990. Footwear, athletic, low-cut; Band, foxing-like; Overlap

Dear Sir:

FACTS:

In NYRL 854935 Customs held that a low-cut boy's athletic shoe, Stock no. 73238, was classifiable under subheading 6402.99.7090, Harmonized Tariff Schedule of the United States Annotated (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.

Our New York office took the position that the shoe had a foxing-like band because the toe bumper overlaps about 30 percent of the perimeter of the upper by more than 1/2 inch while the remainder of the bottom overlaps the upper by 1/8 inch or more.

Meldisco maintains that the footwear does not exhibit a foxing-like band and is properly classifiable under subheading 6402.99.15, 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.

ISSUE:

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" in the light of certain criteria. The relevant criterion reads as follows:

(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.

Meldisco maintains that a foxing-like band is not present on the shoes within the guidelines set forth in T.D. 83-116 for the following reasons:

1. the bottoms do not have the same appearance, qualities or characteristics as the foxing on the traditional sneaker or tennis shoe;

2. there is not a substantial encirclement of the entire shoe since the toe bumper encircles only 30 percent of the perimeter of the shoe; and

3. the overlap of the upper by 1/4 inch is only in the area of the toe bumper and this overlap does not substantially encircle the shoe.

In Headquarters Ruling Letter (HRL) 083097 dated December 22, 1988, Customs ruled on a men's high top athletic shoe having a molded, two color, plastic/rubber outsole with an extended 1/2 inch high overlapping section that wraps around the toe area for approximately 9 inches. It was observed that the cupping of the molded outsole around the perimeter of the shoe, excluding the approximately 9 inches around the toe area, was so slight as to be negligible. Consequently, it was concluded that the shoe did not possess a foxing-like band because the overlap by the outsole did not substantially encircle it.

In HRL 085934 dated June 6, 1990, Customs had occasion to rule on a similar shoe having a sole which overlapped the upper by almost 1/2 inch in the front or toe bumper portion the shoe.

This overlap of the upper occupied approximately 9.5 inches or 38 percent of the approximately 25 inch perimeter of the shoe. It was observed that the remaining overlap of the upper in the back or heel bumper portion of the shoe was so slight as to be negligible. Consequently, it was held that the shoe did not possess a foxing-like band because the overlap by the sole did not substantially encircle it.

The sample shoe 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 2 inches, the overlap of the upper along the remaining perimeter of the shoe measures approximately 1/16 inch or slightly more.

In this instance the overlap of the upper, other than in the toe bumper area, is not sufficient to create a foxing-like band. The 30 percent encirclement of the perimeter of the shoe by the toe bumper does not constitute a substantial encirclement of the shoe.

HOLDING:

The low-cut boy's athletic shoe, Stock no. 73238, does not possess a foxing-like band. Classification under subheading 6402.99.15, HTSUSA, is appropriate.

In accord with the above determination, NYRL 854935 is revoked pursuant to 19 CFR 177.9 (d).

Sincerely,

Harvey B. Fox

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