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

HQ 088185 May 2 1991 CLA-2 CO:R:C:G 088185 DFC CATEGORY: Classification TARIFF NO.: 6402.99.1515 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 1, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of 3 styles of athletic footwear. Our New York office has responded to you with respect to the classification of the "Flare II" style. On January 8, 1991, you verbally informed a member of my staff that you were withdrawing your request for a ruling as to the dutiable status of style "MIGHTY." A sample of style "STAB PLUS" which will be produced in China and /or Indonesia was submitted for examination. You have also submitted a sample of a size 8 bottom for the same style for the purpose of more accurately determining the amount of overlap around the perimeter of the shoe. FACTS: The sample shoe submitted, style "STAB PLUS", has an upper which, when all accessories and reinforcements are included, has an external surface area of over 90 percent plastics. It also has a rubber/plastics outsole. You have described this style in further detail as follows: -2- The second shoe is Style "STAB PLUS". This shoe is for men. Like the previous style its unit-molded bottom has a vertical overlap exceeding 1/4" in the toe and at two separate protrusion instep areas. The balance of the unit-molded bottom has a negligible vertical overlap. The combination of the toe bumper and the protrusions represent approximately 30% of the perimeter (20cm of 66 cm). You point out that the encirclement measurements include the entire protrusion and toe bumper whether or not the vertical overlap exceeds 1/4 inch. In style "STAB PLUS" you indicate that the instep protrusions were measured separately because there is no measurable overlap in the space between the protrusions. You insist that a foxing-like band is not present because the overlap of the upper by the outsole does not substantially encircle the entire shoe. Consequently, you claim that the "STAB PLUS" is classifiable under subheading 6402.99.15, HTSUSA. The applicable rate of duty is 6 percent ad valorem. ISSUE: How do we apply the "high point" rule to the sample shoe? Does the sample shoes possess a foxing-like band? LAW AND ANALYSIS: T.D. 83-116 set forth certain guidelines relating to the characteristics of a foxing-like band. Those characteristics which are relevant in this instance 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. -3- 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 inch, such footwear is presumed not to have a foxing-like band. It has been suggested that the sample possesses a foxing- like band because of varying amounts of vertical overlap along the perimeter of the shoe. It should be noted in those instances 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 should not be applied when it can be determined without much difficulty that a 1/4 inch overlap of the upper by the sole occupies less than 40 percent of the perimeter of the shoe as is the case here. It is our observation that the overlap of the upper by the sole at points other than at the toe bumper and the two side protrusions constitute a "cupping radius" which we have not recognized as indicative of "foxing or a foxing-like band." See T.D. 83-116. HOLDING: The "STAB PLUS" does not possess a foxing-like band. Consequently, it is classifiable under subheading 6402.99.1515, 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 for this provision is 6 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division 6cc AD NY Seaport 1cc Eric Francke NY Seaport cc Legal Reference 1cc DD Boston 1cc DD Charleston 1cc DD Los Angeles 1cc DD Savannah 1cc DD Seattle 1cc Port Dir Nashville cahill library/peh 088185