CLA-2:CO:R:C:G 087165 SR
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.
FACTS:
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.
ISSUE:
ISSUE 1
Whether T.D. 83-116 constitutes a uniform practice.
ISSUE 2
Whether California construction constitutes a foxing-like
band.
ISSUE 3
Whether the shoe has a foxing-like band.
LAW AND ANALYSIS:
ISSUE 1
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.
ISSUE 2
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.
ISSUE 3
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division