Ladies slip-on casual footwear; foxing-like band; simultaneous injection molded construction; T.D. 83-116; HRL 089964

HQ 950063 December 13, 1991 CLA-2 CO:R:C:M 950063 NLP CATEGORY: Classification TARIFF NO.: 6404.19.35 Ms. Linda Lui NU SHOES, INC. 29 West 56th Street New York, NY 10019 RE: Ladies slip-on casual footwear; foxing-like band; simultaneous injection molded construction; T.D. 83-116; HRL 089964 Dear Ms. Lui: This is in response to your letter dated July 5, 1991, on behalf of Nu Shoes, Inc., in which you requested a tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), for ladies slip-on casual shoes. A sample was submitted for our examination. FACTS: Style no. CI1110 is a ladies slip-on casual shoe with a textile upper, a textile/foam insole and a plastic/rubber outer sole. The shoe is constructed by simultaneous molding of the sole and upper. The upper is then sewn to the sole for reinforcement. The vertical overlap of the sole over the upper, from where the upper and sole initially meet, is 1/8 of an inch measured on a vertical plane. The value of the shoe is stated to be under $3.00 per pair. ISSUE: Does the sample shoe have a foxing-like band. LAW AND ANALYSIS: 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 FR 22904, 17 Cust. Bull. 229 (1983)], the Customs service set forth: (1) Customs position regarding the proper interpretation of provisions 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 foxing-like band. Even though the TSUS was superseded by the HTSUS, effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear. The relevant characteristics of a foxing-like band set forth in T.D. 83-116 are 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. 2. A foxing-like band need not be a separate component. 3. A foxing-like band may or may not secure the joint between the sole and upper. 4. A foxing-like band must be applied or molded at the sole and must overlap the upper. 5. A foxing-like band must encircle or substantially encircle the entire shoe. 6. A foxing-like band may be attached by any means. 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. Headquarters Ruling Letter (HRL) 089964, dated December 6, 1991, dealt with the issue of whether the term "unit molded footwear", as used in T.D. 83-116, should include footwear with direct or simultaneous molded bottoms. HRL 089664 held that: Footwear with pre-formed bottoms and footwear with direct or simultaneous molded bottoms are both included within the scope of the term "unit molded footwear" as used in the seventh guideline for foxing-like bands. The language used in T.D. 83-116 was clear as to the scope of the term "unit molded" bottoms and was never qualified in any manner. For this reason, the exclusion of footwear with direct or simultaneous molded bottoms from application of the 1/4 inch rule is not warranted. Therefore, for simultaneous injection molded footwear to be considered to have a foxing-like band, the footwear must have an overlap measuring 1/4 of an inch or more. The overlap of the sole onto the upper in Style CI1110 measures approximately 1/8 of an inch. This overlap is not sufficient to create a foxing- like band pursuant to the seventh guideline in T.D. 83-116 as interpreted by HRL 089964. Thus, style CI1110 does not have a foxing-like band and is classified in subheading 6404.19.35, HTSUS. HOLDING: Style CI1110 is classified in subheading 6404.19.35, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, other, footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper, other. The rate of duty is 37.5 percent ad valorem. Sincerely, John Durant, Director Commercial Rulings Division