CLA-2 CO:R:C:M 950759 KCC
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