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
Active· CBP ruling HQ 952467· Issued 1994-03-02
Ruling text
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
(b).
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
Source: rulings.cbp.gov — ruling 952467, retrieved 2026-10-12T05:27:07Z, republished verbatim. This digest is informational; only CBP issues binding rulings.