CLA-2 CO:R:C:M 089964
Peter T. Mangione, President
Footwear Distributors and Retailers of America
1319 F Street N.W.
Washington, D.C. 20004
RE: Band, foxing-like; Footwear, unit-molded; simultaneous,
direct molded bottoms: T.D. 83-116, 080760
Dear Mr. Mangione:
This is in reference to your letter dated July 9, 1991, your
meeting of September 25, 1991, with members of your association
and my staff, and our meeting on October 30, 1991, at which we
discussed the Customs Service interpretation of the term "unit-
molded footwear" as it appears in T.D. 83-116. Specifically, you
request that the term "unit-molded", as used in the seventh
guideline of that document, be interpreted to cover simultaneous
or direct molded bottoms.
FACTS:
The seventh characteristic of a foxing-like band as it
appears in T.D. 83-116 reads as follows:
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. (17 Cust.
Bull. at 248)
ISSUE:
Should the term "unit molded footwear", as used in T.D. 83-
116, include footwear with direct or simultaneous molded bottoms?
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
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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Even though the TSUS was superseded by the Harmonized Tariff
Schedule of the United States Annotated (HTSUS), effective
January 1, 1989, the guidelines of T.D. 83-116 are still followed
by Customs with regard to the classification of footwear.
In T.D. 83-116 the position of the domestic shoe industry
with respect to unit molded construction reads in pertinent part
as follows:
The use of unit molded bottoming materials (i.e., plastic or
rubber bottoms in which the heel and sole are molded as a
single unit) has grown in importance in recent years in
connection with the production of both leather and non-
leather footwear, especially so-called "casuals."
Unit molding encompasses two distinct manufacturing
processes. In pre-molded construction, a pre-formed
molded unit sole is separately attached to the upper
after lasting. In direct molding, the molded sole is,
at the time of its formation, molded directly to the
assembled and lasted upper in a single step. When the
soling compound is introduced into the mold in liquid
form, the process is often called "direct injection
molding." In both, there is by design a foxing or a
foxing-like band . . . molded at the sole and
overlapping the upper." (17 Cust. Bull. at 231)
In describing the position of footwear importers, T.D. 83-
116 makes reference to various types of unit-molded footwear.
For example, foxing-like bands may be found on many
sneakers with rubber or plastic uppers including shell
molded and injected molded varieties. (17 Cust. Bull.
at 239)
Finally, in discussing the position of the Customs Service,
T.D. 83-116 refers to two different types of unit-molded bottoms,
injection molded and shell molded bottoms.
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For example, certain injection molded sneakers have foxing-
like bands. Upon completion, there exists a strip which
covers what appears to be (but is not in fact) the joint
between the upper and the sole.
A sneaker with a shell bottom construction also has a
foxing-like band. In that construction the sole is made or
molded in one process and, rather than being merely the
bottom or outsole portion, the molding process results in a
cup-like unit (the sole) into which the upper is glued and
sometimes sewn. The molded shell when affixed to the upper
resembles in appearance and position a separately applied
functional foxing. (17 Cust. Bull. at 244)
As you stated in your letter and at the meetings, the 1/4
inch rule promulgated in the seventh guideline in T.D. 83-116 was
applied to pre-formed bottoms but was never applied to direct or
simultaneous molded bottoms. The rationale for this position was
set out in Headquarters Ruling Letter (HRL) 080760 dated February
8, 1988, which reads in pertinent part as follows:
As to whether the shoe has a foxing-like band, the 1/4 inch
rule set out in T.D. 83-116 applies only to unit molded
soles. The reason for the 1/4 inch rule was that it was not
possible to produce an overlap of less than 1/4 inch that
would be foxing-like in appearance and functional using that
particular method of construction, which was, in 1983, the
method of construction, usually found in the shoes in issue.
In a simultaneous injection construction the different
method of construction makes it possible to have a much more
foxing-like effect for a given amount of overlap . . . The
result of the overlap is thus a shoe which we believe the
average consumer could not distinguish from an otherwise
identical shoe with a traditional, separate, vulcanized
rubber foxing tape and a shoe which we believe is as
resistant to the separation of the sole from the upper as
one with traditional foxing. In our opinion this is exactly
what "foxing-like" was intended to cover.
After a thorough review of the language used in T.D. 83-116
to describe unit molded constructions, we have concluded that
while the examples used refer to the construction of sneakers
rather than ladies casuals, the principles are the same.
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.
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Accordingly, HRL 080760 is modified by this ruling. Future
rulings issued on footwear with foxing-like bands will reflect
this change in interpretation.
HOLDING:
The term "unit molded footwear" as used in T.D. 83-116
includes footwear with direct or simultaneous molded bottoms.
Footwear with direct or simultaneous molded bottoms like
footwear with pre-formed unit bottoms are presumed not to
possess foxing-like bands when the vertical overlap of the upper
by the sole is less than 1/4 inch.
Sincerely,
Harvey B. Fox, Director
Office of Regulations and Rulings
6cc AD NY seaport
1cc John Durant
1cc James Sheridan NY Seaport
1cc Eric Francke NY Seaport
1cc Legal reference