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HQ 952467


March 2 1994

CLA-2 CO:R:C:M 952467 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.70

District Director of Customs
Suite 244
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Protest 2002-92-000935; Sneaker, children's; Band, foxing-like; Encirclement, substantial; T.D. 83-116; T.D. 92-108; HRL's 088510, 089354, 087873, 953035

Dear Sir:

This is in response to the Application for Further Review of Protest 2002-92-000935 covering a shipment of children's and infants' size sneakers manufactured in the People's Republic of China. A sample of the infants size sneaker was submitted for examination.

FACTS:

The sample, style MR-722-0, is an infant's high-top sneaker with a plastic and textile upper and a unit-molded plastic sole. The unit-molded outsole has a heel bumper, toe bumper, and side "anti-pronation device" which overlaps the upper. This style also has a blue wave-shaped overlay that is stitched to the upper and folded under the upper before attaching the outsole. The overlay is visible in the gap between the toe bumper and anti- pronation device. Based on the small amount of textile present on the upper, it is assumed that textile comprises less than 10% of the external surface area of the upper.

A sample of style MR-722-0 in a child's size was not available. However, samples of outsoles for both children's and infants' sizes were submitted.

The entry covering this footwear was made under subheading 6402.19.10, Harmonized Tariff Schedule of the United States (HTSUS), as sports footwear. It was liquidated by Customs on April 24, 1992, under subheading 6402.99.70, HTSUS. The protest was timely filed on July 14, 1992.

ISSUE:

Do the sneakers possess a foxing-like-band?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The provisions under consideration are as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:

6402.19 Other:
6402.19.10 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
. . .

Other footwear:
6402.91 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 and (2) except footwear (other than footwear having uppers which from a point 3 cm above the top of the outer sole are entirely of non-molded construction formed by sewing the parts together and having exposed on the outer surface a substantial portion of functional stitching) designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather . . .

Other:

6402.91.70 Valued over $3 but not over $6.50/pr . . .

6402.99 Other:

6402.99.70 Valued over $3 but not over $6.50/pair . . .

Subheading Note 1 to Chapter 64, HTSUS, reads as follows:

1. For the purposes of subheadings 6402.11, 6402.19, 6403.11, 6403.19 and 6404.11, the expression "sports" footwear" applies only to:

(a) Footwear which is designed for a sporting activity and has, or has provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like;

(b) Skating boots, ski-boots and cross-country ski footwear, wrestling boots, boxing boots and cycling shoes.

The above-cited note limits sports footwear to only the general description set forth in (a) and the enumerated articles in (b). In order to meet the definition, an article must either meet the criteria set forth in (a) or be one of the enumerated types of footwear set forth in (b). The protestant's claim for classification under subheading 6402.19.10, HTSUS, as sports footwear, fails because the child's sneaker neither meets the stated criteria for being considered sports footwear under (a) nor is it one of the enumerated types of footwear set forth in

After careful consideration of numerous comments submitted by footwear importers and the domestic shoe industry, by a document published as T.D. 83-116 in the Federal Register of May 23, 1983 (48 Fed. Reg. 22904, 17 Cust. Bull. 229 (1983), the Customs Service set forth:

(1) Customs position regarding the proper interpretation of the provision in the Tariff Schedules of the United States (TSUS) pertaining to imported footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper, and (2) guidelines relating to the characteristics of foxing and a foxing-like band.

Even though the TSUS was superseded by the Harmonized Tariff Schedule of the United States (HTSUS), effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear.

T.D. 83-116 set forth guidelines relating to the characteristics of foxing and a foxing-like band. Those characteristics which are relevant in this case are listed as follows:

CHARACTERISTICS OF A FOXING

1. A foxing is a strip of material which is separate from the sole and upper.

2. A foxing secures the joint between the sole and upper. It covers the joint but there may be other footwear with a "foxing under" which does not cover the joint as in the B.F. Goodrich definition of foxing previously cited.

5. A foxing must encircle or substantially encircle the entire shoe.

8. However, a mud guard may meet the definition of a foxing. It is usually applied at the sole and folded under at the juncture of the sole and upper and it does extend upward overlapping the upper. It also acts to reinforce or supplement the juncture of the sole and upper.

CHARACTERISTICS OF A FOXING-LIKE BAND

1. The term foxing-like applies to that which has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.

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 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, such footwear is presumed not to have a foxing-like band.

Counsel for the protestant states that the sole of the infants shoe [size 7] overlaps the upper by 1/8 inch around 39% of its perimeter while the sole of the child's shoe [size 10] overlaps the upper by 3/16 inch around 33.8% of its perimeter. Consequently, it is claimed that the shoes do not possess a foxing-like band because the encirclement is less than 40% of the perimeter of the shoes. See Headquarters Ruling Letter HRL 953035 dated April 14, 1993. Further, the existence of a foxing-like band is disputed for the following reasons:

1. In measuring overlap Customs must disregard toe bumpers. See T.D. 83-116.

2. Neither the infants' nor the children's sizes have a "foxing" as defined in T.D. 83-116. The only strip of material which is separate from the sole and the upper, and is applied at the sole and overlapping the upper, is the blue wave overlay. This material encircles less than two inches of the circumference on the infant's size, and therefore does not substantially encircle the shoe. Further, the blue overlay is quite different from the "foxing under" of the B.F. Goodrich definition because it does not hold together the upper and the outsole.

3. The overlap of the unit-molded outsole cannot be combined with that of the blue wave overlay to determine "substantial encirclement." The HTS provision at issue clearly distinguishes between a "foxing or a foxing- like band." These are separate, not combined characteristics of a shoe.
This distinction is clarified in T.D. 83-116, which provides separate criteria for determining the presence of a "foxing," or, a "foxing-like band."

4. Even if the blue wave overlay and the toe bumpers of the unit-molded sole are considered together, the encirclement of the upper by 1/8 inch or more on the infant's size only reaches a maximum of 50% of the circumference of the shoe. In accordance with T.D. 92- 108, the 40/60 rule would apply to determine whether the shoes have a foxing-like band. Under this rule, if the encirclement is between 40% and 60%, the shoe will have a foxing-like band only if the overlap has the appearance, qualities or characteristics of a foxing appearing on a traditional sneaker or tennis shoe.

Here, the piece of blue wave overlay does not have the appearance, qualities or characteristics of a foxing band. When the blue wave overlay and the bumpers of the unit-molded outsole are considered together, there is still no discernible band similar to a foxing encircling the shoe. The contrast between the blue overlay and the white outsole and white upper give the appearance of a blue two-inch wave strip, not a band encircling the shoe. Furthermore, the contrasting thick outsole bumpers and thin blue wave overlay, plus the irregular shape created by viewing the two components as a whole, have no resemblance to a band. In addition, when the shoe is viewed on the instep side, there is little if any visible overlap at all.

TOE BUMPERS

The exception for toe bumpers in the characteristics of a foxing is not found in the listed characteristics of a foxing- like band. It is our opinion that the overlap of the upper by the sole at the front portion of the shoe in issue cannot be considered a toe bumper for tariff purposes. The traditional toe bumper is like the type that is affixed to the Converse "Chuck Taylor All Star." That shoe has a toe bumper separate from and covering the foxing. The subject shoe does not have a toe bumper similar to that present on the Converse shoe. The overlap of the upper by the sole at the front part of the shoe is not a separate piece. It is part of the unit molded outsole. This construction is entirely different from the traditional toe bumper piece on the Converse shoe which has a separate piece of material attached to the toe area of the shoe. See Headquarters Ruling Letter (HRL) 089354 dated October 9, 1991.

SUBSTANTIAL ENCIRCLEMENT

We note that counsel for the protestant has incorrectly measured the extent of the overlap on the sample sneaker due to a failure to include the blue and white plastic strip which appears on the right hand side of the shoe [2 inch overlay] between the "anti-pronation device" [wave] and the "toe bumper." We regard this "plastic strip" as similar to "mud guards" which T.D. 83-116 refers to as a "foxing under." See CHARACTERISTICS OF A FOXING [nos. 2 and 8], supra. Our measurement shows an overlap of 3/16 inch around 52.5% of the perimeter of the infant's shoe including the "plastic strip." Infants' shoes require only 1/8 inch overlap around 40% of their perimeter to qualify for consideration as possessing a foxing-like band. Our estimated measurement of the overlap on a complete child's size is that it would overlap the upper by 3/16 inch around approximately 44% of the perimeter of the shoe. Children's shoes require only 3/16 inch overlap around 40% of their perimeter to qualify for consideration as possessing a foxing-like band. See HRL 088510 dated April 29, 1991.

APPLICATION OF THE 40-60 RULE

The "40-60" rule is a measurement used by Customs import specialists to assist in making a determination pertaining to encirclement. See T.D. 92-108. Generally, under this rule, an encirclement of less than 40% of the perimeter of the shoe by the band does not constitute foxing or a foxing-like band. An encirclement of between 40% to 60% of the perimeter of the shoe by the band may or may not constitute a foxing-like band depending on whether the band functions or looks like a foxing. An encirclement of over 60% of the perimeter of the shoe by the band is always considered substantial encirclement. It is our observation that the "toe bumper," heel guard, anti-pronation device [wave] and white plastic strip together have the same or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.

COMBINED OVERLAP

We disagree with the protestant's contention that the overlap of the upper by the unit-molded sole should not be added to the overlap of the upper by the piece that he calls the "blue wave overlay" in determining whether the overlap substantially encircles the perimeter of the shoe. We have always combined different features in measuring the amount of encirclement of the upper by the sole overlap. An example of this is found in HRL 087873 dated December 6, 1990, wherein overlap by separate lateral stabilizers was counted toward the existence of a foxing- like band. It is our view that inasmuch as the overlap is all in the front, back, and outside surfaces of the upper, it should all be counted toward the existence of a foxing-like band. Protestant claims that combining the overlap created by the "blue wave overlay" is contrary to the statute and T.D. 83-116. It is our observation that there is nothing in the statute or T.D. 83-116 which prohibits combining these overlaps to determine the existence of a foxing like-band. In this instance we have not said that the "blue wave overlay" is a foxing, but only that it is similar to "mud guards" which T.D. 83-116 refers to as a "foxing under." Thus, we consider the "blue wave overlay" to be part of the foxing-like band present on the shoes.

HOLDING:

Style MR 722-0 in infants' and children's sizes possess foxing-like bands and are properly classifiable under subheading 6402.91.70, HTSUS, as 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 applicable rate of duty for this provision is 90 cents/pair plus 37.5% ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you should deny the protest in full. In accordance with Section 3A(11) (b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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