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HQ 953035


April 14, 1993

CLA-2 CO:R:C:M 953035 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.40

Area Director of Customs
J. F.K. Airport
Building 178
Jamaica, New York 11430

RE: Protest 1001-92-103407; Footwear, athletic; Band, foxing- like; Encirclement, substantial; T.D. 83-116; T.D.92-108

Dear Sir:

This is in response to the Application for Further Review of Protest no. 1001-92-103407 dated May 14, 1992, covering a shipment of men's and boy's athletic footwear. A sample of boy's style MG803-0 and a sample of a separate outsole belonging to men's style MJ803-0 were submitted for examination.

FACTS:

The only difference between the two styles involved is that style MJ803-0 is sized for men whereas MG 803-0 is sized for boys. Both styles incorporate unit molded outersoles, "toe bumpers," heel bumpers and antipronation devices. The unit molded soles overlap the uppers by over 1/4 inch in 3 distinct areas (i.e., toe, heel and side).

The entries covering these shipments were liquidated under subheading 6402.91.80, Harmonized Tariff Schedule of the United States (HTSUS), as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having a foxing or foxing-like band applied or molded at the sole and overlapping the upper, other, valued over $6.50 but not over $12/pair. The applicable rate of duty for this provision is 90 cents/pr plus 20% ad valorem.

The protestant claims that these athletic shoes are properly classifiable under subheading 6402.91.40, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other footwear, 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, and not having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper. The applicable rate of duty for this provision is 6% ad valorem.

ISSUE:

Can the frontal overlaps of the footwear uppers by the soles (the part referred to as "toe bumpers)" be considered in determining the existence of a foxing-like band?

Do the men's and boy's shoes exhibit foxing-like bands?

LAW AND ANALYSIS:

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 FR 22904, 17 Cust. Bull. 229 (1983)], the Customs Service set forth:

(1) Customs position regarding the proper interpretation of provisions 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 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 lists the characteristics of a foxing. The seventh characteristic which is relevant here, reads as follows:

7. A foxing does not include components known by another name clearly recognized in the trade such as mock welts, toe bumpers, wedge wraps, and platform wraps.

Noting this characteristic, counsel for the protestant asserts that Customs must disregard toe bumpers when determining whether the footwear incorporates a foxing-like band.

It is our opinion that the overlap of the upper by the sole at the front portion of the shoes in issue cannot be considered a toe bumper as listed in T.D. 83-116(7) 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 styles do not have toe bumpers similar to that present on the Converse shoe. The overlap of the upper by the sole at the front part of the shoes 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.

T.D. 83-116 set forth certain guidelines relating to the characteristics of a foxing-like band. Those characteristics which are relevant in this instance read as follows: 4. A foxing-like band must be applied or molded at the sole and must overlap the upper.

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.

Alternatively, counsel for the protestant argues that the bumpers [included collectively as bumpers are toe and heel bumpers plus the antipronation device] encircle only 35% of the perimeter of the shoes. Consequently, they cannot be considered as foxing- like bands because they do not substantially encircle the perimeter of the shoes within the "40-60" rule.

The "40-60" rule as it is referred to, is a guideline used by Customs import specialists to assist in making a determination pertaining to encirclement. 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 or 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. See, T.D.92-108.

It is your position that the sole overlaps the upper by 1/4 inch around 41% of the perimeter of both styles. You assert that even though the "toe bumper," heel bumper and antipronation device do not have a 1/4 inch overlap at their beginning, and end, but only toward their centers, these segments should be measured from beginning to end as having a 1/4 inch overlap. One reason for this method of measurement is that you can not say where the lasting allowance of the upper ends on a sole with no upper. Also, it is not easy to determine at what point it goes above or below 1/4 inch. Therefore, you assume that it ends at the lowest point on the top surface of that sole.

It is our position that the overlap on a separate sole should be measured as accurately as possible to determine the percentage of 1/4 inch overlap around the perimeter of a shoe. With respect to the measurement of the separate sole, we would not include that portion of the overlap which actually measures less than 1/4 inch toward the 40% encirclement necessary for consideration as a foxing-like band. While our method of measuring overlap on a separate sole may not be completely accurate, we believe that it presents fewer problems than your suggested method of measurement.

Headquarters measurement of the separate sole of style MJ803- 0 reveals that sole will overlap the upper by 1/4 inch or more over 38% of the perimeter of the shoe. Our measurement of style MG803- 0 shows an overlap of the upper by 1/4 inch or more over 39% of the perimeter of the shoe.

In view of the foregoing, it is our opinion that styles MJ803- 0 and MG803-0 do not exhibit foxing-like bands.

HOLDING:

The frontal overlap ["toe bumper"] may be considered in determining the existence of a foxing-like band.

Styles MJ803-0 and MG803-0 do not exhibit foxing-like bands.

Styles MJ803-0 and MG803-0 are dutiable at the rate of 6% ad valorem under subheading 6402.91.40, HTSUS.

The protest should be allowed. A copy of this decision should be attached to the Customs Form 19, and mailed to the protestant, through counsel, as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division


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