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HQ 087165

August 20, 1990

CLA-2:CO:R:C:G 087165 SR


TARIFF NO.: 700.57

District Director of Customs
Thomas P. O'Neill, Jr. Federal Building
10 Causeway Street
Boston, Massachusetts 02222-1059

RE: Decision on Application for Further Review of Protest No. 0401-90-000068.

Dear Sir:

This protest was filed against your decisions in the liquidations on October 27, 1989, of the entries listed on the attached page.


The merchandise at issue is a waterproof golf shoe, importers style number 58149. It is made of Clarino imitation leather. The shoe has a wedge wrap with two rows of stitches that attach the upper to the sole. The interlining is plastic and the back side of the stitched seams are coated with waterproofing cement. The outer sole of the shoe has spikes. The importer claims that the shoe is constructed with a platform wrap; however, this is not so. A platform wrap has a piece that is attached below a thick platform midsole and wraps up around and down to the top of the midsole where it is sewn to the upper. The shoe at issue has a separate piece of Clarino leather that is sewn to the bottom of the upper underneath the foxing-like band that goes up around the top of the band, where it is sewn.



Whether T.D. 83-116 constitutes a uniform practice.


Whether California construction constitutes a foxing-like band.


Whether the shoe has a foxing-like band.



The importer argues that Treasury Decision (T.D.) 83-116 establishes a uniform practice that applies to California construction footwear. However, the Guidelines set forth as T.D. 83-116 were developed because of the divergent opinions held by importers, the domestic shoe industry and Customs officers regarding the meaning of the terms "foxing" and "foxing-like band." The first step in the development of the Guidelines was the solicitation of comments on the understanding of those terms within the footwear industry and the effect of such understanding on the tariff classification of footwear.

The document which set forth Customs position and the Guidelines developed as a result of public comment was published on May 23, 1983 (48 FR 22904). The document specifically stated that it was an aid to Customs officers in classifying specific merchandise constructed with a foxing or foxing-like band. It cannot be considered to be a ruling and it does not establish a uniform practice.

Section 177.1(d), Customs Regulations (19 CFR 177.1(d)) provides in pertinent part as follows:

(d) Definitions (1) A "ruling is a written statement issued by the Headquarters Office or the Regional Commissioner, New York Region, that interprets and applies the provisions of the Customs and related laws to a specific set of facts. (Emphasis added). A "ruling" letter is a ruling issued in response to a written request therefore and set forth in a letter addressed to the person making the request or his designee.

In 1983, shortly after the publication of T.D. 83-116, the U.S. Court of International Trade in the case of Pagoda Trading Co. v. United States, 6 CIT 296 (1983), was asked to review the issuance. The Court in dismissing the cause of action concluded that the plaintiff did not have a "ruling" which would give the Court jurisdiction. The Court specifically stated:

The pronouncement in question, contained in T.D. 83-116, (48 Fed. Reg. 22,904) was published by the Secretary of the Treasury on May 23, 1983. It expressed guidelines for the classification of footwear. In particular, it contained a section devoted to guidelines "set forth as an aid to Customs officers in classifying specific footwear constructed with foxing." (48 Fed. Reg. 22,910)

The administrative decision complained of did not rule specifically on the merchandise which plaintiff intends to import. It is the opinion of the Court that judicial review in advance of importation was not intended for an instance when the merchandise in question and its classification still remain in an indefinite state. The expectation that a general administrative ruling will be applied in a particular case is not sufficient to create a ripe dispute in the area. The law envisions a classification dispute moved back in time prior to importation. But this is not possible if the classification decision and the identity of the affected merchandise are not fully materialized.

The defect in this action can be characterized in a number of ways as a lack of ripeness, as a failure to exhaust administrative remedies or, most specifically, as the absence of . . . [a] . . . ruling . . .

Here the Court cannot presume that this ruling will apply to particular merchandise even though importers may, in good faith, believe that to be inevitable. The Court cannot engage in a preliminary determination that merchandise will be classified in accordance with the ruling. That remains a function of the Customs Service. The necessity for the Court to consider these possibilities demonstrates the immaturity of the dispute from a judicial standpoint.

In 1987, T.D. 83-116 was again brought to the attention of the Court in a case. In Far Eastern Department Store U.S.A., Inc. v. U.S., 678 F.Supp. 892 (1987) the Court expressly noted that T.D. 83-116 was "an aid to customs officers."

It is our opinion that the language of the Customs Regulations, the Guidelines themselves and the holdings in the above-cited cases support our position, in fact compel the conclusion, that T.D. 83-116 does not constitute a ruling which can be relied upon by importers in making their business decisions.


The importer also claims that the shoe at issue is of California construction, or "slip-lasted," and therefore does not have a foxing-like band under T.D. 83-116. The term "slip- lasted" is derived from the fact that the last is inserted or slipped into a "closed upper," previously sewed to a sock lining in the stitching room. In the trade, the term "California" is frequently used to designate shoes of this type.

The slip-lasted shoe is usually casual in design, made with an unlined upper, low wedge heel and platform sole of resilient material. After the upper and sock lining have been sewn together, the platform cover is sewn to this unit. The platform cover is in two pieces, one to cover the forepart platform and a wider piece to cover the wedge heel.

The slip-lasted method does not lend itself well to closed toe and closed heel styles; consequently, open toe and open heel patterns predominate. However, closed toe and closed heel styles can be and are being made by the process even though they entail more operations and are more difficult to make.

The statement that "[f]ootwear of slip-lasted (California) construction does not possess foxing or a foxing-like band for tariff purposes" appears in the "Summary of Customs Position" in T.D. 83-116. We submit that this statement is a limited exclusion when read in the context of the whole document. The relevant portions relating to slip-lasted (California construction) read as follows:

(4) Position of Domestic Shoe Industry: Slip-lasted (California) Construction

The slip-lasted (California) construction is utilized mainly for casual shoes and sandals; a classic example is a fabric, leather or plastic casual shoe, either closed upper or open toe/open back, with an insole or unit blended insole, an outsole, wedge or heel.

The position of the importers concerning the slip-lasted construction is as follows:

1. The strip of material, or wrap does not secure the joint between the sole or upper. In fact, the strip does not overlap the sole at all,

2. The strip or wrap cannot be said to be a "foxing-like band" since without covering the juncture between the sole and the upper it cannot be said to simulate functional "foxing", and

3. The appearance of casual footwear made by this construction is foreign to "sneakers" and other athletic- type footwear.

The type of shoe that this exception was intended to apply to at the time the Guidelines were written is not the same as the shoe at issue. It is our view that a fair reading of the entire document reveals that the slip-lasted exclusion applied only to casual shoes of that type of construction. It should be noted that the only reason for this exclusion is that the domestic interests insisted that the "Popsicle" style women's slipper, at that time the shoe imported in the largest quantity, should be found to have a foxing-like band at the point where the wedge wrap was stitched to the upper. This was considered an erroneous position, and so the slip-lasted (California) exclusion was written into the Guidelines to make it clear that these shoes were not to be dutiable at the higher rate.

It is clear that the shoes at issue are not at all similar to the "Popsicle" California construction shoe referred to in the Guidelines. The shoe at issue does have a strip that overlaps with the sole. If the small piece of Clarino that wraps around the top of the foxing-like band is removed the band looks just like the foxing-like band on a sneaker.

However, the issue of whether shoes constructed in this manner have a foxing-like band is currently before the Court of International Trade (Nissho Iwai America, Inc. v. United States, Court No. 90-05-00-247). We will of course comply with the final decision of the courts concerning this issue.


The characteristics of a foxing-like band are defined in T.D. 83-116, as unit molded footwear with a vertical overlap of 1/4 inch or more 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. The upper of the golf shoe is double stitched to the sole. The stitched area where the upper and the sole overlap is more than 1/4 inch. Therefore, the golf shoe has a foxing-like band.


The footwear at issue does have a foxing like band. It is classifiable under item 700.57, TSUS, which provides for 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, other footwear, other, 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.

The protest should be denied. A copy of this decision should be attached to the Form 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.


John Durant, Director

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