CLA-2 CO:R:C:M 088240
Ms. Linda Carey
Leif J. Ostberg, Inc.
401 Hamburg Turnpike,
Suite 305,
Wayne N.J. 07470
RE: Footwear, athletic. Band, foxing-like; encirclement,
substantial.
Dear Ms. Carey:
In a letter dated October 18, 1990, you inquired as to
the tariff classification under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), of an athletic shoe
produced in China. A sample was submitted for examination.
FACTS:
The sample is an over-the-ankle athletic shoe with a unit-
molded plastic bottom and a PU upper with PVC overlays. There
are four synthetic overlays covered by clear plastic pieces.
The overlays are composed of woven synthetic strips which adhere
to a synthetic backing. We note that there is less than 10
percent textile in the external surface area of the upper.
ISSUE:
1. Application of the "high point" rule.
2. 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.
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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.
An examination of the sample shows that the toe bumper
overlaps the upper by more than 1/4 inch over 25 percent of the
perimeter of the shoe. The "wave" configuration on the side of
the shoe overlaps the upper by another 8 percent of the
perimeter of the shoe by over 1/4 inch at its "crest" only. The
remaining overlap of the upper by the sole is 1/16 inch or less.
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
comes 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."
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 the
overlap of the upper by the sole is 1/16 inch or less over at
least 65 percent of the perimeter of the shoe. Specifically, a
sole is presumed not to overlap the upper if the overlap is less
than 1/16 inch. With unit molded footwear in adult sizes an
overlap of 1/16 inch is not sufficient to create a foxing-like
band. 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.
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 occupies less than 40 percent of the perimeter of the shoe
as is the case here. 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.
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HOLDING:
The sample athletic shoe is classifiable under subheading
6402.91.40, HTSUSA, as other footwear with outer soles and uppers
of rubber or plastics, 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. 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
1cc Legal Reference
cahill library/pehwp
088240