Footwear, athletic. Jogger, imitation, low-cut; Band, foxing-like; Encirclement, substantial

HQ 088295 February 25, 1991 CLA-2 CO:R:C:M 088295 DFC CATEGORY: Classification TARIFF NO.: 6402.99.1515 Robert D. Stang, Esq. Grunfeld, Desiderio, Lebowitz & Silverman Counselors at Law 12 East 49th Street New York, NY 10017 RE: Footwear, athletic. Jogger, imitation, low-cut; Band, foxing-like; Encirclement, substantial Dear Mr. Stang: In a letter dated October 25, 1990, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a low-cut imitation jogger which will be produced in a number of countries including Taiwan and China. A sample of the complete shoe along with a sample of its unit molded bottom were submitted for examination. FACTS: The sample has a plastic upper which is cemented to a rubber/plastic black and white unit molded bottom. The unit molded bottom is styled in a traditional jogger configuration and incorporates a toe bumper as well as what is termed an "anti-pronation" device on each side of the sole. You state that the "anti-pronation" devices have been added to the footwear to prevent the foot from twisting from side to side. Both the toe bumper and the "anti-pronation" devices overlap the upper by approximately 3/8 of an inch at their highest point and encircle approximately 37 percent of the perimeter of the shoe by your measurement. The remaining overlap of the upper by the sole is stated to be barely distinguishable. -2- It is your opinion that the shoe 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. ISSUE: Does the shoe 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 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 "residual overlap" here can be termed a "cupping radius" which we have not recognized as indicative of "foxing or a foxing-like band." See T.D. 83-116. -3- HOLDING: Footwear represented by the sample is dutiable at the rate of 6 percent ad valorem under subheading 6402.99.1515, HTSUSA. Sincerely, John Durant, Director Commercial Rulings Division 6cc AD NY Seaport 1cc John Durant 1cc Eric Francke NY Seaport cahill library/peh 088295