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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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