HQ 089374: Reconsideration of NY Ruling Letters (NYRL) 861783 and 859090; Athletic Shoes, Band, Foxing-like.

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 089374

                         August 12, 1991

CLA-2 CO:R:C:M 089374 DWS

CATEGORY: Classification

TARIFF NO.: 6402.99.70; 6402.99.15

Mr. Joseph F. Straus
BBC International Ltd.
19 West 34th Street
New York, NY 10001

RE: Reconsideration of NY Ruling Letters (NYRL) 861783 and
    859090; Athletic Shoes, Band, Foxing-like.


Dear Mr. Straus:

     As requested by your letter of May 8, 1991, we have
reconsidered NYRL 859090, dated January 17, 1991, and NYRL
861783, dated April 10, 1991, concerning the classification of
athletic shoes under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).

FACTS:

     The subject article in NYRL 861783 is an adult athletic shoe
with a plastic upper and a unit-molded sole.  The sole has a
"wave" that overlaps the upper by over 1/4 inch in certain
places.  The "wave" is not uniform in design.  In NYRL 859090,
the style of athletic shoe is a woman's low-cut shoe with a
plastic upper and a unit-molded sole.  The sole has a mud guard
and a "wave" that overlaps the upper by over 1/4 inch in certain
places.  Again, the "wave" is not uniform in design.  The sole
also has a number of horizontal strips painted on.

ISSUE:

     Does either style of athletic shoe possess a foxing-like
band for tariff purposes?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.


     Subheading 6402.99.15, HTSUSA, provides for:

     [o]ther footwear with outer soles and uppers of rubber or
     plastics: [o]ther footwear: [o]ther: [h]aving uppers of
     which over 90 percent of the external surface area . . . is
     rubber or plastics (except footwear having a foxing or a
     foxing-like band applied or molded at the sole and
     overlapping the upper . . .): [o]ther.

     Subheading 6402.99.70, HTSUSA, provides for:

     [o]ther footwear with outer soles and uppers of rubber or
     plastics: [o]ther footwear: [o]ther: [o]ther: [o]ther:
     [v]alued over $3 but not over $6.50/ pair.

     In your letter of May 8, 1991, you claim that neither shoe
possesses a foxing-like band and, therefore, both styles of shoe
should be classifiable under subheading 6402.99.15, HTSUSA.

     The "high point" rule is relevant to the determination of
whether the subject athletic shoes have foxing-like bands.  This
rule has its origin in HQ 069886, dated June 22, 1983, 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
light of the following criteria:

     (1)  The sole must extend over and cover part of the upper.

     (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 1/4 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, 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." (HQ 088510,
April 29, 1991).



     First, we note that no separate, unattached bottoms were
submitted by the importer.  Had that been the case, the "high
point" rule would not have been relevant, because the unattached
soles could easily have been measured for any overlap.

     In NYRL 859090, it was stated that the athletic shoe does
have a foxing-like band.  We agree.  The "wave" around the shoe
is not uniform and, therefore, under the "high point" rule, the
shoe must be cut where the "wave" is highest.  On that shoe, the
highest point of the "wave" easily overlaps the shoe by 1/4 inch.
In NYRL 861783, it was stated that the athletic shoe does not
have a foxing-like band.  We disagree.  The "wave" around that
shoe is also not uniform, thereby invoking the "high point" rule.
At the highest point of the "wave", the shoe was cut showing that
the "wave" overlaps the upper by more than 1/4 inch.

     Therefore, under the "high point" rule, the highest point of
the "wave" on both types of shoes overlaps the uppers by more
than 1/4 inch, giving the shoes foxing-like bands.

HOLDING:

     Both types of athletic shoes are classifiable under
subheading 6402.99.70, HTSUSA, which provides for: "[o]ther
footwear with outer soles and uppers of rubber or plastics:
[o]ther footwear: [o]ther: [o]ther: [o]ther: [v]alued over $3 but
not over $6.50/ pair."  The general, column one rate of duty is
90 cents per pair plus 37.5 percent ad valorem.

     This notice to you should be considered a modification of
NYRL 861783 under 19 CFR 177.9(d).  It is not to be applied
retroactively to NYRL 861783 [19 CFR 177.9(d)] and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling.  However, for the purposes of
future transactions in merchandise of this type, NYRL 861783 will
not be valid precedent.  We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it.  If such a situation
arises, you may, at your discretion notify this office and apply
for relief from the binding effects of this decision as may be
warranted by the circumstances.

                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division