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HQ 964579




November 19, 2001

CLA-2 RR:CR:TE 964579 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.90

Stephen S. Spraitzar, Esquire
Law Offices of George R. Tuttle
Three Embarcadero Center
Suite 1160
San Francisco, CA 94111

RE: Reconsideration of NY G81429; Foxing-Like Band, Heel Stabilizer; T.D. 92-108.

Dear Mr. Spraitzar:

This letter is in response to your request, dated October 6, 2000, filed on behalf of your client Asics Tiger Corporation, for reconsideration of New York Ruling letter (NY) G81429. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of the Asics athletic shoe, Style SY21.

After review of NY G81429, it has been determined that the classification of the Style SY21 in subheading 6402.91.90, HTSUSA, is correct. For the reasons that follow, this ruling affirms NY G81429.

FACTS:

Style SY21 is described as an athletic shoe with an outer sole and upper of predominately rubber or plastics. The shoe features a unit-molded outer sole. The shoe is valued over $12/pair. It is a mid-height "athletic" shoe that covers the ankle. The upper appears to be predominately rubber/plastics. The outer sole is of a cupped, pre-formed unit-molded construction, which overlaps the upper around the entire perimeter of the shoe.

Two lab reports from Consumer Testing Laboratories, Inc. were submitted showing the amount of overlap of the upper by the outer sole. Report N52896 L reports that, for the left shoe, the amount of overlap that is "greater than 1/4 inch" is 56.61 percent of the perimeter of the shoe. Report N52896 R reports that, for the right shoe, the amount of overlap that is "greater than 1/4 inch" is 55.45 percent of the perimeter of the shoe. The variation of the amount of overlap was measured as follows.

LEFT SHOE

Less than 1/16 inch

0.00

Greater than 1/16 inch and Less than 1/8 inch 30.99

Greater than 1/8 inch and Less than 3/16 inch 10.33

Greater than 3/16 inch and Less than 1/4 inch 2.07

Greater than 1/4 inch
56.61

RIGHT SHOE

Less than 1/16 inch

7.22

Greater than 1/16 inch and Less than 1/8 inch 2.72

Greater than 1/8 inch and Less than 3/16 inch 0.00

Greater than 3/16 inch and Less than 1/4 inch 34.61

Greater than 1/4 inch
55.45

The component, which you identify as a “heel stabilizer”, overlaps the upper in excess of ¼ inch around approximately 40 percent of the perimeter of the shoe.

ISSUE

Does the Style SY21, an over the ankle athletic shoe, have a foxing-like band?

LAW AND ANALYSIS

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

In NY G81429, Customs classified style SY21 under subheading 6402.91.90, HTSUSA, which provides for:

Other footwear with outer soles and uppers of rubber or plastics: Other footwear:
Covering the ankle:
Other:
Other:
Valued over $12/pair

You contend that style SY21 does not have a foxing or foxing-like band, and that the shoe should be classified under subheading 6402.91.40, HTSUSA, which provides, in pertinent part, for:

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 . . . 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 . . . .

On November 17, 1993, Customs published Treasury Decision (T.D.) 93-88, dated October 25, 1993, in the Customs Bulletin, Volume 27, Number 46.

T.D. 93-88 contains certain footwear definitions used by Customs import specialists to classify footwear. The definitions were provided merely as guidelines and, although consulted here, are not to be construed as Customs rulings. In T.D. 93-88 Customs stated that the typical "foxing band" was “a rubber tape, about 1 inch high by 1/16 inch thick, which covers the lower part of the upper and the edge of the rubber outersole. . . ." Customs provided that the term "foxing-like band" was defined as "a band around a substantial portion of the lower part of the upper which either has been attached (cemented, sewn, etc.) to the sole or is part of the same molded piece of rubber or plastics which forms the sole." In T.D. 83-116, dated June 22, 1983, Customs set forth guidelines relating to the characteristics of foxing and foxing-like bands. Customs noted that 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 outer sole initially meet (measured on a vertical plane), and that if the overlap is less than 1/4 inch, the footwear is presumed not to have a foxing-like band.

In T.D. 92-108, dated November 10, 1992, 26 Cust. Bul. No. 48, Customs set forth its position regarding the interpretation of the term "substantially encircle" as it relates to "foxing and foxing-like bands." In so doing, Customs formally adopted the "40-60" rule, which is described as:
a measurement 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.

In instances where the overlap of the upper varies, if the importer provides a separate outer sole in conjunction with a sample of the completed shoe, only the overlap of the upper that is ¼ inch or greater will be considered for application of the 40-60 rule. See HQ 088510, dated April 29, 1991.

When the overlap falls within the 40-60% range Customs analysis is not terminated. Customs proceeds to examine whether the band has the same or nearly the same appearance, qualities, or characteristics as a foxing band appearing on a traditional sneaker or tennis shoe. In other words, Customs examines whether the overlap has the appearance and function of a foxing band. See, T.D. 92-108.

You make three arguments to support your contention that style SY21 does not have a foxing band. For ease of analysis, your arguments will not be addressed in order, and have been rephrased. You argue that:

1. Once the 40-60 rule has been satisfied, i.e., the overlap of the upper that is ¼ inch or greater encircles between 40 to 60% of the shoe, overlaps of less than ¼ inch cannot be considered when determining whether the overlap has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker.

2. The heel stabilizer should be excluded from consideration when determining substantial encirclement.

3. Most of the overlap is on the inside of the shoe, therefore the shoe does not have the appearance, qualities or characteristics of the foxing appearing on the traditional sneaker or tennis shoe.

As to your first argument, you request that “Customs make a specific determination on this point.” Customs will decline from deciding this issue at this time. A determination as to whether the shoe has a foxing-like band can be made by considering those areas of the shoe that have an overlap of ¼ inch or greater. Thus, it is not necessary to speculate whether the overlap that is less than ¼ inch creates the appearance that the shoe has a foxing-like band.

You further argue that the heel stabilizer should not be included in the determination of whether the shoe has a foxing-like band. This argument is based on the fact that the heel stabilizer is made of hard plastic which is not found on a traditional sneaker or tennis shoe. However, the issue is not whether a hard plastic heel stabilizer is found on a traditional sneaker, but whether the shoe has the appearance of having a foxing band. In HQ 088773, dated May 20, 1991, a case involving toe bumpers and heel stabilizers, the importer similarly argued that because a heel stabilizer is a separate component, it is excluded from consideration of whether the shoe has a foxing-like band. Customs found this argument to be unpersuasive, stating that:

Customs has never limited foxing-like bands only to shoes having the appearance of a traditional sneaker or tennis shoe.

. . .

Although the term “foxing” was stated in T.D. 83-116 not to include components clearly recognized in the trade, such as toe bumpers, it is our opinion that this shoe should not be viewed according to its individual constituent elements but, rather in its totality.

See also, HQ 089219, dated May 29, 1991.

Customs reconsidered HQ 088773 in HQ 089577, dated October 7, 1991. Regarding toe bumpers, Customs found that any frontal overlap of the upper by the sole could be considered in the measurement of a foxing-like band. Customs went on to affirm HQ 088773, as it applied to heel stabilizers. Moreover, in HQ 960788, dated December 8, 2000, Customs found that the toe and heel counters under consideration constituted a foxing. Accordingly, when considering whether a shoe has a foxing-like band, we must consider the shoe in its entirety, not merely its individual components. Any overlap, which measures over ¼ inch or greater, will be considered. The heel stabilizer is therefore considered in determining whether Style SY21 has a foxing-like band.

You cite to HQ 955747, dated October 27, 1991, and HQ 956697, dated November 8, 1994. In so doing, you imply that heel stabilizers cannot be considered for determining whether footwear has a foxing-like band. However, these rulings did not conclude that heel stabilizers cannot be taken into consideration. Instead, Customs found that the shoes did not have a foxing like band because most of the encirclement was in one area of the shoe, either the front or the rear. If the footwear under consideration, taking into account those components that overlap the upper by ¼ inch or more, has the same appearance, qualities or characteristics as the foxing appearing on the traditional sneaker or tennis shoe, it will be considered to have a foxing-like band.

This case is similar to Genesco Inc., v. United States¸102 F. Supp. 2d 478 (2000) wherein the plaintiff made a “Visual Impact” argument. The plaintiff contended that “gaps in the overlap of the upper by the sole and heel stabilizer between the toe and heel on both sides of the shoe prevent the requisite ‘visual impact’ of the foxing of the traditional sneaker or tennis shoe – in which the foxing completely encircles the perimeter of the shoe, without gaps . . .” Id. The Court rejected this argument stating that “gaps in a ‘foxing-like’ band are permissible provided that the band still substantially encircles the perimeter of the shoe.” Id. The shoe considered in Genesco is distinguishable from the SY21 because the amount of overlap of ¼ inch or more was approximately 65%, thereby meeting the definition of substantial encirclement and negating application of the 40-60 rule. In so ruling, the Court refused to allow the fact that there were gaps in the foxing-like band to negate the finding of substantial encirclement. In cases where it is necessary to apply the 40-60 rule, a gap in the overlap of the upper will not end the analysis of whether there is a foxing-like band. It is still necessary to determine if the overlap has the appearance and function of a foxing band.

Finally, you argue that because most of the overlap occurs on the inside of the shoe, it does not have the appearance, qualities or characteristics of the foxing appearing on the traditional sneaker or tennis shoe. Customs has found foxing-like bands on shoes where the ¼ inch or more overlap encircles only slightly more than 40% of the perimeter of the upper. The reason for this is that most of those shoes have the appearance of foxing when all or most of the ¼ inch overlap is visible because it is at the front, outside, or the back of the shoe. Additionally, the band functions as a foxing when it acts to reinforce or supplement the juncture of the sole and the upper. See, T.D. 92-108. In this case, while there is a good portion of overlap on the inside of the shoe, the fact is, the majority of the overlap occurs at the front, back and outside of the shoe. Thus, when viewed from the front and outside enough overlap is visible so that the shoe has the same appearance, qualities or characteristics as the foxing appearing on the traditional sneaker or tennis shoe.

HOLDING:

NY G81429 is affirmed. Style SY21 is classified under subheading 6402.91.90, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Valued over $12/pair.” The general column one rate of duty is 20 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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