Athletic footwear. Band, foxing-like; Overlap; Encirclement, substantial

HQ 088039 December 24, 1990 CLA-2 CO:R:C:G 088039 DFC CATEGORY: Classification TARIFF NO.: 6402.91.60-90 John B. Pellegrini, Esq. Law Offices Ross & Hardies 529 Fifth Avenue New York, New York 10017-4608 RE: Athletic footwear. Band, foxing-like; Overlap; Encirclement, substantial Dear Mr. Pellegrini: In a letter dated October 3, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an athletic shoe which will be produced in China and/or Indonesia. A sample was submitted for examination. FACTS: The sample is a high-cut athletic shoe with a completely plastic upper and rubber/plastic unit-molded outsole. You claim that the outsole overlaps the upper in three distinct areas which, in the aggregate, represent 39 percent of the perimeter of the shoe (26 cm of 66 cm). Further, you insist that a foxing-like band is not present here since the overlap of the upper by the outsole does not substantially encircle the entire shoe. In view of the foregoing, you suggest that the shoe is classifiable under subheading 6402.91.40, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having 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 (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper. . . . The applicable rate of duty for this provision is 6 percent ad valorem -2- ISSUE: How do we apply the "high point" rule to the sample shoe? Does the sample shoe possess a foxing-like band? LAW AND ANALYSIS: In computing the amount of encirclement of the shoe's perimeter you would only include three areas. These areas having a vertical overlap of over 1/4 inch, at least in part, include the toe bumper and two protrusions on the shoe's outside, one forward of the instep and another in the heel area. Specifically, you would exclude from your computation all areas of the unit molded sole which are not part of a protrusion or the toe bumper. You would apply the "high-point" rule by including the entire area of the toe bumper and the two protrusions, rather than only the areas where the overlap exceeds 1/4 inch. You believe that the "high-point" rule properly applies to the measurement of distinct components. You explain further that: . . . where the vertical overlap of a distinct portion of a unit-molded bottom is irregular, the degree of vertical overlap is deemed to be the "high point." Here, there are three distinct areas of significant vertical overlap, the toe bumper, and the two protrusions on the shoe's outside. The toe bumper is uniform in height. The protrusions are not. Therefore, the "high-point" rule applies to the protrusions. The "high-point" rule does not apply to any other portion of the bottom. Your interpretation of the "high-point" rule is rather ingenious. However, we view such an interpretation as being too restrictive. In applying the "high point" rule one must be aware of any significant overlaps of the upper at any point along the perimeter of the shoe. Our examination of the sample reveals that the sole overlaps the upper by significant amounts along 53 percent of the perimeter of the shoe. Inasmuch as there are varying amounts of overlap along 53 percent of the perimeter of the shoe, we would make the cut at the point where the greatest amount of overlap occurs. In this instance this point appears to be in the toe bumper portion of the shoe. -3- The overlap at that point exceeds 1/4 inch. Consequently, the "high point" rule applies and the entire overlap will be treated as if it were 1/4 inch. In support of your position you cite Headquarters Ruling Letter (HRL) 087847 dated September 26, 1990, concerning the tariff classification of a low-cut athletic shoe with a unit- molded outsole. You submit that HRL 087847 stands for the proposition that "in determining substantial encirclement, only those areas which have a vertical overlap of 1/4 inch or more may be included." It is our view that HRL 087847 does not support your position because there are major differences in the construction of the two shoes. The only overlap over 1/4 inch in that case was the 30 percent of the perimeter of the upper overlapped by the toe bumper. With the instant shoe the overlap is in the toe bumper plus most of the outside of the shoe. The remaining overlap in HRL 087847 was 1/16 inch or slightly more whereas the remaining overlap on the instant shoe is 1/8 inch. HOLDING: The sample shoe possesses a foxing-like band because the overlap of the upper by the sole substantially encircles its perimeter. The sample is classifiable under subheading 6402.91.60-90, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, other, and dutiable at a rate depending on value per pair. Sincerely, John Durant, Director Commercial Rulings Division 6cc AD NY Seaport 1cc Eric Francke NY Seaport 1cc Legal Reference 1cc DD Boston 1cc DD Charleston 1cc DD Los Angeles 1cc DD Seattle 1cc Port Dir Nashville 1cc DD Savannahcahill library/peh 088039