CLA-2 CO:R:C:M 088443 DFC
John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608
RE: Footwear, athletic; Band, foxing-like; Overlap;
Encirclement, substantial
Dear Mr. Pellegrini:
In a letter dated January 8, 1991, you inquired as to the
tariff classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of certain athletic footwear
which will be manufactured in China and /or Indonesia. A sample
shoe along with its separate sole was submitted for examination.
FACTS:
The sample, "Altitude II," is a high-top athletic shoe with
a plastic upper, the external surface area of which is assumed to
be less than 10 percent textile, and a unit molded plastic
bottom.
You assert that a foxing-like band is not present because
the overlap of the upper by the sole does not substantially
encircle the entire shoe. Consequently, you claim that the
"Altitude" is classifiable under subheading 6402.91.40, HTSUSA,
as other footwear with outer soles and uppers of rubber or
plastics, other, covering the ankle, and not having a foxing-like
band.
ISSUE:
Does the overlap of the upper substantially encircle the
shoe?
Does the sample shoe possess a foxing-like band?
- 2 -
LAW AND ANALYSIS:
T.D. 83-116 set forth certain guidelines relating to the
characteristics of a foxing-like band. The characteristic which
is relevant in this instances reads as follows:
(5) A foxing-like band must encircle or substantially
encircle the entire shoe.
By our measurement the sole overlaps the upper by 1/4 inch
or more around approximately 31 percent of the periphery of the
upper. The remaining overlap measures 1/16 inch around 69
percent of the periphery of the upper. We have taken the
position that an overlap of 1/16 inch is a cupping radius and
does not constitute an overlap for purposes of determining
substantial encirclement. An overlap of 31 percent of the
periphery of the shoe by 1/4 inch or more is not considered
"substantial encirclement" of the entire shoe. Consequently, the
sample shoe does not possess a foxing-like band.
HOLDING:
Footwear represented by the sample is dutiable at the rate
of 6 percent ad valorem under subheading 6402.91.40, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc Eric Francke NY Seaport
1cc A. Cataldo Boston
1cc H. Marshall LA Long Beach
1cc DD Seattle Wash
1cc Dist Dir Charleston S.C.
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1cc Port Dir Nashville