HQ 956697 - Protest 2904-92-100059; Band, foxing-like; Substantial encirclement; Foxing-like band; T.D. 83-116; T.D. 92-108; HRL's 083120,085290,087873,952467,955747 - United States International Trade Commision Rulings

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HQ 956697

November 8, 1994

CLA-2 CO:R:C:M 956697 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 700.56

RE: Protest 2904-92-100059; Band, foxing-like; Substantial encirclement; Foxing-like band; T.D. 83-116; T.D. 92-108; HRL's 083120,085290,087873,952467,955747

District Director of Customs
U.S. Customs Service
511 N.W. Broadway Federal Bldg
Portland, OR 97209

Dear District Director:

This is in response to Protest 2904-92-100059, covering in part, low-cut athletic shoes. A sample was submitted for examination.

FACTS:

Counsel for the protestant has informed us that the sample submitted, identified as Style AC20WGB, is a women's athletic (cycling) shoe. It is stated to be in all material respects the same as Style AC20MBW which is a men's and boys' low-cut athletic shoe. The sample, which has a hook and loop closure in place of laces, and a vamp flap, has an upper the external surface area (ESAU) of which is over 90% plastics including accessories and reinforcements. The bottom consists of a rubber/plastic outsole which overlaps the upper in the toe area. Protestant states that the area of overlap replicates a separate toe bumper. There is a separate midsole and a wedge between the outsole and the midsole. The midsole has two protrusions forward of the instep on the inside and outside of the shoe. According to the protestant, the area of the outsole which overlaps the upper represents approximately 26.8% of the shoe's perimeter while the midsole protrusions each represent approximately 8% of the perimeter. Taken together, these separate components cover approximately 42.8% of the shoe's perimeter.

The entries covering Style AC 20 were liquidated on December 13, 1991, under item 700.71, Tariff Schedules of the United States (TSUS), which provides for other footwear which is over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics, and having a foxing-like band, other. The protest was timely filed on March 11, 1992.

Counsel for the protestant maintains that Style AC-20 is properly classifiable under item 700.56, TSUS, which provides for other footwear which is over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics and having uppers of which over 90 percent of the exterior surface area is rubber or plastics, and not having a foxing-like band.

ISSUE:

Does Style AC-20 possess a foxing-like band?

LAW AND ANALYSIS:

The competing provisions are as follows:

Footwear (whether or not described elsewhere in this subpart) which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics:

Other footwear (except footwear having uppers of which over 50 percent of the exterior surface area is leather):
Having uppers of which over 90 percent of the exterior surface area is rubber or plastics (except footwear having foxing or a foxing- liked band applied or molded at the sole and overlapping the upper):

700.56 Other. . . . . .

Other:

Other:
Footwear having soles (or midsoles, if any) of rubber or plastics which are affixed to the upper exclusively with an adhesive (any midsoles also being affixed exclusively to one another and to the outsole with an adhesive); the foregoing except footwear having a foxing or foxing-like band applied to or molded at the sole and overlapping the upper and except footwear with soles which overlap the upper other than at the toe or heel:

Other:

700.71 Valued over $12 per pair. . . . . . .

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, 1953 (48 Fed. Reg. 22904, 17 Cust. Bull. 229 (1983)), the Customs Service set forth:

(1) Customs position regarding the proper interpretation of the provisions in the 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.

T.D. 83-116 set forth guidelines relating to the characteristics of foxing-like bands. Those characteristics which are relevant are listed as follows:

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.

Counsel for the protestant states that there are two components, viz., the outsole and the midsole which could be considered a foxing-like band. However, neither component substantially encircles the upper and there is no authority to cumulate these separate components in determining substantial encirclement. Further, if cumulation is permitted the area of overlap is between 40 and 60%. This does not constitute substantial encirclement because the subject footwear does not appear to have a foxing. Finally, the requirement in T.D. 83-16 for substantial encirclement is not satisfied unless the area of overlap covers at least three quarters of the shoe's perimeter.

Counsel for the protestant argues further that, taken together, the outsole and the midsole overlap approximately 42% of the perimeter of the shoe. The amount of overlap here does not constitute substantial encirclement. See Headquarters Ruling Letter (HRL) 083120 dated February 6, 1990, wherein foxing which covered between 35 and 47% of the shoe held not to substantially encircle.

Counsel for the protestant also points out that the footwear in issue does not appear to have a foxing for the following reasons:

1. the overlap of the outsole at the toe replicates, and has the appearance of, a toe bumper, a component excluded from the term foxing;

2. the small areas where the midsole overlaps the upper are separated from the toe bumper portion of the outsole and from each other;

3. there is no overlap at any point from the front of the outside instep around the heel to the front of the inside instep, approximately 52% of the shoe;

4. there is no overlap between the toe bumper and the midsole protrusions. There is not even a "cupping radius" in these areas. See HRL 088185 dated May 2, 1991; and

5. from the rear the shoe has the appearance of a jogger or walking shoe. From the side the appearance is also of a jogger or a walking shoe because of the wedge. From the front the appearance is of a shoe with a toe bumper. The shoe does not give the appearance of having a foxing.

We disagree with protestant's claim that there are two components, viz., the outsole and the midsole which could be considered a foxing-like band. There is only one component to be considered and that is the sole. Nowhere in the foxing language of the TSUS does the word "midsole" appear. The tariff language explicitly mentions "a foxing-like band applied or molded at the sole." It does not state "applied or molded at the outsole" or "applied or molded at the sole (other than at the midsole)." See HRL 085290 dated April 17, 1990.

Counsel for the protestant has taken the position that an overlap of 42% of the perimeter of the upper by the sole of the sample does not constitute substantial encirclement within the purview of the "40-60" rule, noting HRL 083120, supra. 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, [Interpretative Rule] published in the Customs Bulletin and Decisions on November 25, 1992. 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.

Counsel for protestant is correct when he states that a toe bumper is excluded from consideration as a foxing. However, 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 instant 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 molded sole. 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 HRL 952467 dated March 2, 1994.

We do not agree with protestant's contention that the overlap at the toe and sides of the shoe may not be cumulated 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.

Our measurement of the sample indicates that there is a 1/4 inch overlap of the upper by the sole of between 43% and 48% of the perimeter of the shoe depending on whether the gaps between the overlaps were included in the measurement. However, it is our assessment that the overlap of the upper which is not readily visible when viewing the shoe from the front is mostly around the front portion of the shoe. Consequently, it is our opinion that the overlap of the upper by the sole in this instance cannot be considered foxing-like because it does not have the same or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. See HRL 955747 dated October 27, 1994.

HOLDING:

Style AC 20 does not possess a foxing-like band.

STYLE AC 20 is dutiable at the rate of 6% ad valorem under item 700.56, TSUS.

The protest should be allowed. In accordance with Section 3A(11)(b) of Custom 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 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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