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HQ 964797




March 21, 2002

CLA-2 RR:CR:TE 964797 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.7090; 6402.99.1815

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731

RE: Decision on Application for Further Review of Protest No. 2704-00-103055; Classification of Infants’ and Children’s Shoes; Foxing-like Band; Application of Differing Criteria.

Dear Madam:

This is a decision on an application for further review (AFR) of a protest timely filed on November 13, 2000, by Ross & Hardies, on behalf of Elan Polo, Inc. The Protest concerns the classification and liquidation of an entry of infants’ and children’s footwear entered on July 20, 2000.

FACTS:

You classified the merchandise in subheading 6402.99.7090, Harmonized Tariff Schedule United States Annotated (HTSUSA), the provision for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $3 but not over $6.50/pair, Other: Other,” with an applicable rate of duty of 90 cents/pr plus 37.5% ad valorem.

The protestant claims that the goods should be classified in subheading 6402.99.1815, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear 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: Other, Tennis shoes, basketball shoes, gym shoes, training shoes and the like," with a general column one duty rate of 6 percent ad valorem.

The item under consideration, style #5503, is an infant’s shoe, size 7, with rubber/plastics uppers and rubber outer soles. The shoe is described as a cross-trainer and does not cover the ankle. The shoe has a unit molded sole, which overlaps the upper. Customs examined the shoe and found that the amount of overlap of the upper by the outsole is exactly 1/8th of an inch.

ISSUE:

Whether Customs properly measured the overlap of the upper by the outsole when determining if the shoe has a foxing-like band.

2. Whether it was proper for Customs to apply its conclusion that the infants’ footwear has a foxing-like band to the children’s footwear.

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.

1. Whether Customs properly measured the overlap of the upper by the outsole when determining if the shoe has a foxing-like band.

On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, Customs published Treasury Decision (T.D.) 93-88 (dated October 25, 1993), which 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. 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 also set forth guidelines relating to the characteristics of foxing and foxing-like bands. We 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 outsole 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 HQ 087098 dated June 12, 1990, Customs ruled that children's shoes having an overlap of 3/16 of an inch or more and infant's shoes having an overlap of 1/8 of an inch or more should be considered to have a foxing-like band. If the extent of the overlap covers between 40 percent and 60 percent of the perimeter of the shoe, the shoe may possess a foxing-like band. T.D. 92-108, 26 Cust. Bul. 362 (November 10, 1992).

The protestant claims that Customs erred in the methods used to determine if the shoe has a foxing-like band. The protestant asserts that Customs, when measuring the amount of overlap of the upper, improperly determined the point at which the upper and the outsole initially meet. At the meeting with counsel for the protestant, Customs was able, with the benefit of a sample, to show counsel the point at which the upper and the outsole initially meet. Counsel agreed with Customs that the point used by Customs was proper. Accordingly, we find that Customs measurements were accurate and that the shoe sampled has a foxing-like band.

2. Whether it was proper for Customs to apply its conclusion that the infants’ footwear has a foxing-like band to the children’s footwear.

The protestant also questions Customs application of the determination that the shoe has a foxing-like band to the children’s shoes included in the entry. Customs employs a different standard from that used for infants’ footwear when determining whether children’s footwear has a foxing-like band. As noted above, children’s shoes may be found to have a foxing-like band if the amount of overlap of the upper by the outsole is 3/16 of an inch.

The instant entry contained children’s footwear. Accordingly, in order for this footwear to have a foxing-like band, the shoes must have an overlap of the upper of at least 3/16 of an inch. Counsel argues that Customs should apply the actual findings, i.e., that the overlap of the upper is 1/8 of an inch, to all of the footwear in the entry, including the children’s shoes. This would result in the determination that the children’s sizes do not have a foxing-like band.

Since importers often complain when movement of their containers is delayed for the taking and testing of samples, Customs will generally take only one sample that is representative of all the shoes of a particular style included in a shipment. See HQ 962262, dated November 19, 2001. The test results from a representative sample of a particular entry will be applied to the same style shoes in that entry. However, it is important to differentiate between the results of a test and the determination that is arrived at by applying the law, regulations, and rules to the results of the test. In this case, the overlap of the upper by the outsole on the sampled shoe is 1/8 of an inch. Thus, Customs properly determined that the infants’ shoes had a foxing-like band. However, Customs did not apply its findings that the overlap was 1/8 of an inch to the children’s sizes – which require an overlap of at least 3/16 of an inch. Instead, Customs applied the conclusion that it had reached, that the infants’ shoes have a foxing-like band, to the children’s shoes.

In order for Customs to conclude that the children’s shoes have a foxing-like band, Customs must assume that the children’s size nine and size ten shoes have an overlap of the upper of 3/16 of an inch or more. It is improper for Customs to disregard its own findings and to assume that the amount of overlap of the children’s shoes increased to 3/16 of an inch. Customs will not apply its conclusion that the infant shoe has a foxing-like band, to those children’s shoes in the entry to which a larger overlap is applicable.

HOLDING:

Infant’s sizes of style #5503 are classified under subheading 6402.99.7090, HTSUSA, the provision for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $3 but not over $6.50/pair, Other: Other.” The general column one rate of duty is 90 cents/pr plus 37.5% ad valorem.

Children’s sizes of style #5503 are classified in subheading 6402.99.1815, HTSUSA, the provision for "Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear 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: Other, Tennis shoes, basketball shoes, gym shoes, training shoes and the like." The general column one duty rate is 6 percent ad valorem.

The protest should be DENIED, except to the extent that reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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