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HQ 950760


March 12, 1992

CLA-2 CO:R:C:M 950760 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.70

District Director
U.S. Customs Service
300 South Ferry Street Terminal Island
Room 2071
San Pedro, California 90731

RE: Protest No. 2704-91-102732; Men's athletic shoes; foxing- like band; high point rule; 088510; 950718

Dear Sir:

This is in response to the Application for Further Review of Protest No. 2704-91-102732, dated June 3, 1991, which pertains to the tariff classification of men's athletic shoes under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the shoe and a sample of an unattached sole were submitted for examination.

FACTS:

The articles under consideration are black men's pu jogger shoes, VSC lot 9002, in sizes 6.5 to 13. Upon importation into the U.S., the entry was liquidated under subheading 6402.99.70, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear...Other... Other...Other...Valued over $3 but not over $6.50/pair."

The protestant, Payless ShoeSource, Inc., contends that the men's athletic shoes are classifiable under subheading 6402.99.15, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear...Other...Other."

ISSUE:

Does the sample men's athletic shoe possess a foxing-like band?

LAW AND ANALYSIS:

In deciding where to classify footwear of this type, one must first determine whether the footwear has as one of its constituent parts a "foxing-like band." The characteristics of a foxing-like band are set forth in Treasury Decision (T.D.) 83- 116, 17 Cust. Bull. 229 (1983). The relevant characteristics at issue in this case 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 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.

The shoe at issue has varying amounts of vertical overlap along the perimeter of the shoe. In this type of instance where there are variations in overlap, the "high point" rule may come 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." The "high point" rule is not used in cases where a separate sole sample is submitted with a sample of the completed shoe. See, Headquarters Ruling Letter (HRL) 088510 dated April 29, 1991. The protestant submitted an entire shoe and an unattached sole. However, the sole sample is different from the sole on the shoe sample and, therefore, has no bearing on the analysis of this case. Regardless of this fact, we do not need to use the "high point" rule because Customs analysis of the shoe found that all of the overlap on the shoe measured 1/4 inch or more.

Customs further determined that this overlap encircles 46.2 percent of the perimeter of the upper. An encirclement of between 40 and 60 percent of the perimeter of the shoe by a band may or may not constitute a foxing-like band depending on whether the band functions or looks like a foxing. See, HRL 950718 dated February 4, 1992. In both appearance and function the band is foxing-like. Therefore, the men's athletic shoes are classified under subheading 6402.99.70, HTSUS.

HOLDING:

The men's athletic shoes are classified under subheading 6402.99.70, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear... Other...Other...Other...Valued over $3 but not over $6.50/pair."

This protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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