Protest No. 2704-91-104393; Women's athletic shoes; foxing- like band; high point rule; 088510; 088240; 950718

HQ 950759 March 18, 1992 CLA-2 CO:R:C:M 950759 KCC CATEGORY: Classification TARIFF NO.: 6402.91.40 District Director U.S. Customs Service 300 South Ferry Street Terminal Island Room 2071 San Pedro, California 90731 RE: Protest No. 2704-91-104393; Women's athletic shoes; foxing- like band; high point rule; 088510; 088240; 950718 Dear Sir: This is in response to the Application for Further Review of Protest No. 2704-91-104393, dated October 9, 1991, which pertains to the tariff classification of women's athletic shoes under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the shoe was submitted for examination. FACTS: The articles under consideration are white women's tiara type shoes with a PVC upper, rubber outsole, stock number 9745, in sizes 5 to 12. The entry was liquidated under subheading 6402.91.70, HTSUS, which provides for "Other footwear with outer soles and uppers of rubber or plastics...Other footwear... Covering the ankle...Other...Other...Valued over $3 but not over $6.50/pair." The protestant, Payless ShoeSource, Inc., contends that the women's athletic shoes are classifiable under subheading 6402.91.40, HTSUS, which provides for "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...." ISSUE: Does the sample women'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 women's athletic 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 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." See, Headquarters Ruling Letter (HRL) 088510 dated April 29, 1991. The "high point" rule should not be applied where it can be determined without much difficulty that a 1/4 inch overlap by the sole encircles less than 40 percent of the perimeter of the 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 would require numerous cuts at various places along the perimeter of the shoe. See, HRL 088240 dated February 13, 1991. 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 women's athletic shoe to be deemed a foxing-like band, it must encircle between 40 and 60 percent of the perimeter of the shoe and have the appearance or function of a foxing-like band or encircle 60 percent or more of the perimeter of the shoe. See, HRL 950718 dated February 4, 1992. A foxing-like band is presumed not to exist when it encircles less than 40 percent of the perimeter of the shoe. In this instance a foxing-like band does not exist because, without application of the "high point" rule, the overlap of the upper by the sole is less than 1/4 inch over at least 66.2 percent of the perimeter of the shoe. Specifically, a sole is presumed not to overlap the upper if the overlap is less than 1/4 inch. With unit molded footwear in adult sizes an overlap of less than 1/4 inch is not sufficient to create a foxing-like band. See, HRL 088240. Further, those portions of the shoe which appear to simulate the appearance of foxing do not qualify as such because they fail to sufficiently overlap the upper. HOLDING: The women's athletic shoes are classified under subheading 6402.91.40, HTSUS, which provides for "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...." This 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