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HQ 088893

June 13, 1991

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.


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) 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."


Should the "high point" rule be revoked or modified?


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) 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.


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.


John Durant, Director

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