CLA-2 CO:R:C:M 952935 KCC
Ralph H. Sheppard, Esq.
Adduci, Mastriani, Meeks & Schill
330 Madison Avenue
New York, New York 10017
RE: Footwear; DD 863424 revoked; 19 CFR Part 177; outer sole;
Note 4(b), Chapter 64; General EN (C) to Chapter 64
Dear Mr. Sheppard:
This is in reference to DD 863424 issued to you by Customs
in Chicago on June 10, 1991, in response to your letter of May
13, 1991, submitted on behalf of Florida Shoe Import, Inc.,
concerning the tariff classification of footwear under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
According to the letter (your file STEG-001) upon which DD
863424 was issued, you requested the classification of "wool felt
footwear" manufactured in Germany. The footwear was described as
having a wool felt upper formed to completely encircle the front
portion of the foot, with a low heel portion permitting the foot
to slip in and out of the shoe. The formed upper was glued to a
sole consisting of three components which themselves are glued
together. The outer sole consists of a layer of wool felt glued
to a mid-sole consisting of rubber affixed to a molded footbed of
composition cork molded and fashioned to orthopedically conform
to the contours of the foot.
Based upon this description and your assertion that "the
constituent material of the outer sole consists entirely of the
felt", the footwear was classified under subheading 6405.20.60,
HTSUS, which provides for "Other footwear...With uppers of
textile materials...With soles and uppers of wool felt." DD
863424 did not provide the style or stock number of the shoe
under consideration but did state that the shoe will come in a
variety of sizes which will be worn by men, women and children.
ISSUE:
Is the footwear properly classified under subheading
6405.20.60, HTSUS, as "Other footwear...With uppers of textile
materials...With soles and uppers of wool felt"?
LAW AND ANALYSIS:
DD 863424 is a tariff classification ruling letter issued by
Customs in accordance with Part 177, Customs Regulations (19 CFR
Part 177). Section 177.9, Customs Regulations (19 CFR 177.9)
states, in pertinent part, that:
(a) A ruling letter issued by the Customs Service, under the
provisions of this part represents the official position of
the Customs Service with respect to the particular
transaction or issues described therein and is binding on
all Customs Service personnel in accordance with the
provisions of this section until modified or revoked....
(b) (1) Generally. Each ruling letter is issued on the
assumption that all of the information furnished in
connection with the ruling request and incorporated in
the ruling letter, either directly, by reference, or by
implication, is accurate and complete in every material
respect. The application of a ruling letter by a
Customs Service field office to the transaction to
which it is purported to relate is subject to the
verification of the facts incorporated in the ruling
letter, a comparison of the transaction described
therein to the actual transaction, and the satisfaction
of any conditions on which the ruling was based. If,
in the opinion of any Customs Service field office by
whom the transaction is under consideration or review,
the ruling letter should be modified or revoked, the
findings and recommendations of that office will be
forwarded to the Headquarters Office for consideration,
as provided in section 177.11(b)(1)(i), prior to any
final disposition with respect to the transaction by
that office....
(2) Tariff classification rulings. Each ruling letter
setting forth the proper classification of an article
under the provisions of the Harmonized Tariff Schedule
of the United States will be applied only with respect
to transactions involving articles identical to the
sample submitted with the ruling request or to articles
whose description is identical to the description set
forth in the ruling letter.
The tariff classification in DD 863424 was based on the
description and sample you provided in the May 13, 1991 letter,
as well as your assertion that "the outer sole is of wool felt.".
Therefore, DD 863424 is only applicable to footwear whose
description is identical to the description set forth in the
ruling letter. 19 CFR 177.9(b)(2).
On December 5, 1991, Florida Shoe entered approximately
20,000 pairs of shoes (Florida Shoe article number 108) at Tampa,
Florida, claiming that DD 863424 was controlling as to the proper
tariff classification. Upon comparing the description of the
footwear in DD 863424 to the pending entry, Customs personnel in
Tampa were not satisfied that DD 863424 adequately described the
footwear in the pending entry. Pursuant to 19 CFR 177(b)(1),
Tampa referred DD 863424 and a sample of the footwear from the
entry to this office for further consideration.
Classification of footwear is based upon the construction of
the outer soles and uppers. In your May 13, 1991, you asserted
that classification of the footwear under subheading 6405.20.60,
HTSUS, was proper because the uppers were constructed of textile
material and the sole was constructed of wool or felt. Based
upon you assertion, Customs agreed with the classification under
subheading 6405.20.60, HTSUS.
However, upon examination of an actual sample from the entry
of the footwear alleged to be controlled by DD 863424, there is a
significant discrepancy. There is no question that the upper of
the footwear in the sample and DD 863424 are constructed of wool
felt, a textile material. However, there is a discrepancy as to
the composition of the outer soles.
The composition of the outer sole of footwear is governed by
Note 4(b), Chapter 64, HTSUS, which states that:
The constituent material of the outer sole shall be taken to
be the material having the greatest surface area in contact
with the ground, no account being taken of accessories or
reinforcements such as spikes, bars, nails, protectors or
similar attachments.
General Explanatory Note (EN) (C) to Chapter 64 of the
Harmonized Commodity Description and Coding System (HCDCS) states
that:
The term "outer sole" as used in headings 64.01 to 64.05
means that part of the footwear (other than an attached
heel) which, when in use, is in contact with the ground.
The constituent material of the outer sole for purposes of
classification shall be taken to be the material having the
greatest surface area in contact with the ground.
In determining the constituent material of the outer sole,
no account should be taken of attached accessories or
reinforcements such as spikes, bars, nails, protectors or
similar attachments which partly cover the sole (see Note
4(b) to this Chapter).
HCDCS, Vol. 3, p. 874. The Explanatory Notes, although not
dispositive, are to be looked to for guidance in interpreting the
HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
We are of the opinion that the constituent material of the
outer sole of the sample footwear which will be in contact with
the ground is rubber not felt. The felt material on the bottom
of the shoe sole is quite thin and flimsy and easily removed from
the shoe by peeling it back. Contrary to your description in the
ruling request, the felt material has a light adhesive backing
rather than being glued to the rubber sole. Underneath the
easily removable felt is a 1/8th inch thick rubber sole which is
quite sturdy and has been "cross hatched" along its entire
surface to ensure good traction.
In its condition as imported, we do not believe that the
shoe is a commercial reality. The felt covered rubber sole would
be dangerous when walking on any non-traction surface such as
hard wood or tile floors. In this condition, there is no
traction and the wearer could easily slip and fall. Moreover,
with normal use the flimsy felt material would be easily worn off
the sole within a short time. We are of the opinion that the
felt layer is "fugitive" and that all, or almost all, of the
purchasers will remove the felt if it is present when purchased.
Furthermore, regarding the "commercial reality", we have a
catalog which shows that similar, if not identical, footwear is
advertised and sold as wool clogs with rubber soles. Contrary to
your assertion, no mention is made of felt outer soles.
Therefore, we find that the material which has the greatest
surface contact with the ground will in actuality be the rubber
sole. The footwear in this case is constructed of textile
material uppers and a rubber outer sole and is properly
classified under subheading 6404.19.35, HTSUS. As the footwear
in the entry is not the footwear described in DD 863424, DD
863424 is not applicable to the classification of the footwear
entry. 19 CFR 177.9(b)(2). Therefore, we are instructing
Customs personnel in Tampa, Florida, via a copy of this ruling,
to classify the footwear under subheading 6404.19.35, HTSUS.
Additionally, as we have determined that the footwear, which was
alleged to be controlled by DD 863424, is not in fact the
footwear described in DD 863424, DD 863424 is revoked.
HOLDING:
The footwear at issue is properly classified under
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," which is dutiable at the rate of
37.5 percent ad valorem.
Additionally, this notice to you should be considered a
revocation of DD 863424 under section 177.9(d)(1), Customs
Regulations (19 CFR 177.9(d)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division