April 29, 1991
CLA-2 CO:R:C:M 088510 DFC
CATEGORY: Classification
TARIFF NO.: N/A
Peter T. Mangione, President
Footwear Distributors and Retailers of America
1319 F Street N.W.
Washington, D.C. 20004
RE: Band, foxing-like; Overlap on infant’s and children’s
footwear with unit molded soles; “high point” rule
Dear Mr. Mangione:
In a letter dated January 15, 1991, you asked that we
reconsider the “high point” rule and the permissible degree
of vertical overlap on childrens’ and infants’ footwear with
unit molded soles.
FACTS:
“HIGH POINT” RULE”
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.”
OVERLAP IN CHILDREN’S AND INFANT” SHOES
In HRL 087098 dated June 12, 1990, Customs ruled that
children’s shoes having an overlap of 1/8 inch or more and
infant’s shoes having an overlap of 1/16 inch or more should be
considered to have a foxing-like band.
ISSUE:
1. Should the “high point” rule be revoked or modified?
2. Should the amount of overlap for finding the
presence of a foxing-like band on children’s
or infant’s footwear with unit molded bottoms
be increased?
LAW AND ANALYSIS:
ISSUE NO 1
Briefly, it is your position that the “high point” rule
should not be applied to unit molded bottoms in order to
determine the presence of foxing-like bands for the following
reasons:
(1) this rule did not appear in T.D. 83-116;
-3-
(2) it was developed for an entirely different purpose; and
(3) its use substantially alters the principles of T.D.
83-116.
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.
ISSUE NO. 2
You argue that our rule pertaining to the permissible degree
of overlap on children’s and infants’ footwear is unreasonable
and will work a substantial hardship on importers of children’s
and infants’ shoes. You claim that the rule is unreasonable
because it ignores the other characteristics of this footwear.
You assert that if the ruling is allowed to stand, virtually all
infants’ and most children’s footwear with unit molded bottoms
will be deemed to have foxing-like bands. Further, the bottoms
of this footwear though athletic in nature do not have the
appearance of the foxing appearing on the traditional sneaker or
tennis shoe. These shoes have the appearance of jogger-type or
other non-sneaker footwear.
-4-
During the formulation of the guidelines the discussions
leading to the 1/4 inch rule were concerned with adult sizes and
never took into consideration infants’ and children’s shoes.
Generally, those shoes which are proportionately smaller than
adults’ would not have a 1/4 inch overlap even though they were
identical to adult shoes which clearly had foxing because of the
amount of their overlap. This position is clearly not
unreasonable. However, inasmuch as we have taken the position
that an overlap of 1/16 inch is a cupping radius and does not
constitute an overlap, the amount of overlap necessary to create
a foxing-like band must be increased for both children’s and
infants’ footwear. It is now our position that infants’ shoes
having an overlap of 1/8 inch or more and children’s shoes having
an overlap of 3/16 inch or more around 40 percent of their
perimeters may possess foxing-like bands.
You point out correctly that while Customs took into
account proportionality in determining the permissible overlap
in children’s and infants’ footwear, it refused to do so in HRL
079591 dated April 18, 1988. There the inquirer argued that if
the term “at the toe” is interpreted to mean a horizontal overlap
of 2-1/2 inches on children’s footwear, the degree of horizontal
overlap should increase in proportion to size. We are willing to
entertain further proposals from you on this matter since we now
agree that the amount of horizontal overlap allowable should be
based on size. However, at this time we do not concur with the
bumper allowances stated in the inquirer’s letter of January 16,
1987.
HOLDING:
The “high point” rule is modified with respect to its
application. Specifically, samples of complete shoes submitted
along with separate samples of their unit molded soles will not
be subject to the “high point” rule. Samples of completed
footwear without samples of their unit molded soles will be
subject to application of the “high point” rule in those
instances where variations in the amount of overlap are apparent.
-5-
Children’s shoes having an overlap of 3/16 inch or more and
infants’ shoes having an overlap of 1/8 inch or more may be
considered to have foxing-like bands.
Sincerely,
Harvey B. Fox, Director
Office of Regulations & Rulings
2cc CIE
6cc AD NY Seaport
1cc Legal Reference
1cc James Sheridan NY Seaport
1cc Eric Francke NY Seaport
cahill library/peh
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