CLA-2 CO:R:C:M 088893 DFC
Robert B. Silverman, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
Counselors At Law
12 East 49th Street
New York, NY 10017
RE: Footwear, unit molded sole; Band, Foxing-like;
"high point" rule
Dear Mr. Silverman:
In a letter dated February 19, 1991, you asked us to
clarify our position with respect to the application of the
"high point" rule. You expressed concern that Customs may
broadly interpret the phrase "foxing or foxing-like band
molded or applied at the outsole and overlapping the upper"
rather than what you describe as a very narrow interpretation
set out in T.D. 83-116 and several recent rulings issued by
Headquarters.
FACTS:
The "high point" rule had its origin in Headquarters Ruling
Letter (HRL) 069886 dated June 22, 1983, which was published as
C.S.D. 83-103, 17 Cust. Bull. 948 (1983). This ruling set forth
an interpretation of the phrase "soles which overlap the upper
other than at the toe or heel." It reads in pertinent part as
follows:
It is our position that the phrase "soles which overlap the
upper other than at the toe or heel" should be interpreted in the
light of the following criteria:
(1) The sole must extend over and cover part of the upper.
-2-
(2) In measuring overlap when the overlap is uniform, only
one cut is to be made in the shoe, and that cut is to
be made at the edge where the ball of the foot would
normally rest. If the overlap is not uniform, the cut
should be made at the point where the greatest amount
of overlap occurs.
(3) A sole will be considered to overlap the upper if a
vertical overlap of 1/16 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
1/16 inch, the sole is presumed not to overlap the
upper.
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."
ISSUE:
Should the "high point" rule be revoked or modified?
LAW AND ANALYSIS:
You assert that when Customs applies the "high point" rule
to foxing questions, it attributes the vertical sole/upper
overlap of certain components (i.e., toe bumpers which overlap
the upper 1/4 inch) to other sole components (i.e., curved
cupping radiuses of less than 1/4 inch overlap) to conclude that
the sole incorporates a foxing-like band.
You claim that this is a misapplication of the "high point"
rule for the following reasons:
(1) The "high point" rule was not intended to be used to
measure sole/upper overlap in these instances. The
sole/upper overlap of such footwear can be determined
very easily and does not require numerous measurements
to determine sole overlap.
(2) The "high point" rule was created to be used in limited
instances (wavy sole footwear) as a rule of
administrative convenience. It was not intended to be
used to conclude that the vertical overlap of discrete
sole components should be considered to be the vertical
overlap of other sole components.
-3-
(3) The "high point" rule was not developed to be used in
foxing determinations. Its use in foxing questions has
confused the "high point" rule with the clear 1/4 inch
overlap standard set out in the foxing guidelines.
As stated previously, the criteria set out in C.S.D. 83-103
were not intended to be guidelines for determining the existence
of foxing-like bands. They set forth a method for determining
whether particular shoes have "soles which overlap the upper
other than at the toe or heel." The fact that the "high point"
rule was not enunciated in T.D. 83-116, and, was not developed
to determine the existence of a foxing-like band does not
preclude its use in certain circumstances. The application of
the rule is reasonable in those situations where variations in
the amount of overlap on unit molded footwear makes measurement
of overlap impractical due to the amount of cutting necessary to
make such a determination. It is our understanding that the
various ports do not have the personnel or the time to conduct
such a procedure.
However, in the recent past certain importers of footwear
have submitted samples of completed footwear along with their
separate unit molded soles. In this situation no cutting would
be required because the amount of overlap could be readily
measured based on an examination of the completed footwear and
their separate unit molded soles. In the event that the importer
does not submit separate unit molded soles for measurement,
application of the "high point" rule would be appropriate when
variations in the amount of overlap are apparent.
HOLDING:
The "high point" rule has been previously modified with
respect to its application. See Headquarters Ruling Letter
088510 dated April 29, 1991. Specifically, samples of complete
shoes submitted along with separate samples of their unit molded
soles are not subject to the "high point" rule. Samples of
completed footwear without samples of their unit molded soles
are subject to application of the "high point" rule in those
instances where variations in the amount of overlap are apparent.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc AD NY Seaport
1cc Eric Francke NY Seaport
cahill library/peh
088893