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HQ 951015


December 9, 1992

CLA-2 CO:R:C:M 951015 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15

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

RE: Protest No. 2704-91-103185; children's athletic shoes; subheading 6402.99.70; foxing-like band; high point rule; T.D. 83-116; T.D. 92-108; HRLs 088501 and 950759

Dear Sir:

This is in response to the Application for Further Review of Protest No. 2704-91-103185, dated July 10, 1991, which pertains to the tariff classification of children's athletic footwear under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles under consideration are boy's athletic shoes, VSC lot 9802, in sizes 2-1/2 to 6. The uppers and soles are made of polyvinyl chloride (PVC). Upon importation, the entry was liquidated under subheading 6402.99.70, HTSUS, which provides for "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [o]ther: [o]ther, valued over $3 but not over $6.50/pair." The rate of duty is 90 cents per pair + 37.5% ad valorem.

The protestant contends that the shoes are classified in subheading 6402.99.15, HTSUS, which provides for "[o]ther footwear with outer soles and uppers of rubber or plastics: [o]ther footwear: [o]ther: [h]aving 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 (except footwear having a foxing or foxing-like band applied or molded at the shoe and overlapping the upper...): [o]ther." The rate of duty is 6% ad valorem.

ISSUE:

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

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

In deciding the classification of footwear of this type, we must determine whether the footwear has as one of its constituent parts a "foxing-like band." Treasury Decision (T.D.) 83-116, 17 Cust. Bull. 229 (1983) set forth guidelines relating to the characteristics of foxing or foxing-like bands. 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 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 of an inch, such footwear is presumed not to have a foxing-like band.

In Headquarters Ruling Letter (HRL) 088510, dated April 29, 1991, Customs held that children's shoes having an overlap of 3/16 inch or more around 40% of their perimeters may possess foxing-like bands.

The subject children's shoes were liquidated under the premise that they possessed a foxing-like band because of varying amounts of vertical overlap along the perimeter of the shoe. It should be noted that in those instances where there are variations in overlap, the "high point" rule may come into effect. Briefly, this rule means that where 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, HRL 088510. In this case, the protestant submitted an entire shoe and an unattached sole. However, the sole sample was different from the sole on the shoe sample and, therefore, has no bearing on the analysis of this case.

Moreover, the "high point" rule should not be applied where it can be determined without much difficulty that a 3/16 inch overlap by the sole encircles less than 40% of the perimeter of the child's shoe. 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 that would require numerous cuts at various places along the perimeter of the shoe. However, based on HRL 950759, dated March 18, 1992, which dealt with the classification of women's athletic shoes, the high point rule should not be applied if there is only one variation, called a wave, in the amount of overlap.

In this case, the "high point" rule should not be applied because there is only one variation, a wave, in the amount of overlap. Therefore, in order for the band of the boy's athletic shoe to be deemed a foxing-like band, it must encircle between 40 to 60% of the perimeter of the shoe and have the appearance or function of a foxing-like band or it must encircle 60% or more of the perimeter of the shoe. Custom's position concerning the 40- 60% rule was recently reaffirmed in T.D. 92-108, dated November 25, 1992, 26 Cust. Bull. 48 (1992).

In this instance, a foxing-like band does not exist because the overlap of the upper by the sole is less than 3/16 inch over at least 60.1% of the perimeter of the shoe. With unit molded footwear in children's sizes an overlap of less than 3/16 inch is not sufficient to create a foxing-like band. See, HRL 088510. Therefore, the boy's athletic shoes are classified in subheading 6402.99.15, HTSUS.

HOLDING:

The protest should be granted. 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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