HQ 087847: Request for reconsideration of New York Ruling Letter (NYRL) 854935 dated August 22, 1990. Footwear, athletic, low-cut; Band, foxing-like; Overlap

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 087847

                                  September 26, 1990

            CLA-2 CO:R:C:G 087847 DFC

            CATEGORY: Classification

            TARIFF NO.: 6402.99.15

            John B. Pellegrini, Esq.
            Law Offices
            Ross & Hardies
            529 Fifth Avenue
            New York, New York  10017-4608

            RE:  Request for reconsideration of New York Ruling Letter
                 (NYRL) 854935 dated August 22, 1990. Footwear, athletic,
                 low-cut; Band, foxing-like; Overlap

            Dear Sir:

            FACTS:

                 In NYRL 854935 Customs held that a low-cut boy's athletic
            shoe, Stock no. 73238, was classifiable under subheading
            6402.99.7090, Harmonized Tariff Schedule of the United States
            Annotated (HTSUSA), as other footwear with outer soles and
            uppers of rubber or plastics, not covering the ankle, having a
            foxing-like band, and valued over $3 but not over $6.50 per
            pair.  The applicable rate of duty is 90 cents per pair plus
            37.5 percent ad valorem.

                 Our New York office took the position that the shoe had a
            foxing-like band because the toe bumper overlaps about 30
            percent of the perimeter of the upper by more than 1/2 inch
            while the remainder of the bottom overlaps the upper by 1/8
            inch or more.

                 Meldisco maintains that the footwear does not exhibit a
            foxing-like band and is properly classifiable under subheading
            6402.99.15, HTSUSA, as other footwear with outer soles and
            uppers of rubber or plastics, other, not covering the ankle,
            and not having a foxing-like band.  The applicable rate of
            duty is 6 percent ad valorem.

            ISSUE:

                 Does the shoe possess a foxing-like band?















                                          -2-


            LAW AND ANALYSIS:

                 The rationale expressed for finding a foxing-like band
            appears to have its origin in C.S.D. 83-103 which set forth an
            interpretation of the phrase "soles which overlap the upper
            other than at the toe or heel" in the light of certain
            criteria.  The relevant criterion reads as follows:

                 (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.

                 Meldisco maintains that a foxing-like band is not present
            on the shoes within the guidelines set forth in T.D.  83-116
            for the following reasons:

                 1.     the bottoms do not have the same appearance,
                        qualities or characteristics as the foxing on the
                        traditional sneaker or tennis shoe;

                 2.     there is not a substantial encirclement of the
                        entire shoe since the toe bumper encircles only 30
                        percent of the perimeter of the shoe; and

                 3.     the overlap of the upper by 1/4 inch is only in
                        the area of the toe bumper and this overlap does
                        not substantially encircle the shoe.

                 In Headquarters Ruling Letter (HRL) 083097 dated
            December 22, 1988, Customs ruled on a men's high top athletic
            shoe having a molded, two color, plastic/rubber outsole with
            an extended 1/2 inch high overlapping section that wraps
            around the toe area for approximately 9 inches.  It was
            observed that the cupping of the molded outsole around the
            perimeter of the shoe, excluding the approximately 9 inches
            around the toe area, was so slight as to be negligible.
            Consequently, it was concluded that the shoe did not possess a
            foxing-like band because the overlap by the outsole did not
            substantially encircle it.

                 In HRL 085934 dated June 6, 1990, Customs had occasion to
            rule on a similar shoe having a sole which overlapped the
            upper by almost 1/2 inch in the front or toe bumper portion
            the shoe.














                                          -3-


            This overlap of the upper occupied approximately 9.5 inches or
            38 percent of the approximately 25 inch perimeter of the shoe.
            It was observed that the remaining overlap of the upper in the
            back or heel bumper portion of the shoe was so slight as to be
            negligible.  Consequently, it was held that the shoe did not
            possess a foxing-like band because the overlap by the sole did
            not substantially encircle it.

                 The sample shoe has a plastic upper.  The bottom of the
            shoe is rubber and plastics and is of unit molded
            construction.  Our examination of the sample reveals that
            while the toe bumper overlaps 30 percent of the perimeter of
            the upper by 2 inches, the overlap of the upper along the
            remaining perimeter of the shoe measures approximately 1/16
            inch or slightly more.

                 In this instance the overlap of the upper, other than in
            the toe bumper area, is not sufficient to create a foxing-like
            band.  The 30 percent encirclement of the perimeter of the
            shoe by the toe bumper does not constitute a substantial
            encirclement of the shoe.

            HOLDING:

                 The low-cut boy's athletic shoe, Stock no. 73238, does
            not possess a foxing-like band.  Classification under
            subheading 6402.99.15, HTSUSA, is appropriate.

                 In accord with the above determination, NYRL 854935 is
            revoked pursuant to 19 CFR 177.9 (d).

                                        Sincerely,




                                        Harvey B. Fox
                                        Director
                                        Office of Regulations and Rulings