HQ 955720

May 6 1994

CLA-2 CO:R:C:M 955720 DFC

CATEGORY: Classification

Tariff NO.: 6404.19.35

District Director of Customs

U.S. Customs Service

4430 E. Adamo

Suite 301

Tampa, Florida 33605

RE: Protest 1801-93-100033; Footwear; Soles, wool felt; 19

CFR Part 177; Detrimental reliance; DD 863424; HQ 952935

Dear District Director:

This is in response to Protest 1801-93-100033 covering a

shipment of wool felt footwear produced in Germany.

FACTS:

The merchandise involved has been described as footwear

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.

In DD 863424 dated June 10, 1991, addressed to counsel for

the protestant, the District Director of Customs in Chicago ruled

that the footwear in issue is classifiable under subheading

6405.20.60, Harmonized Tariff Schedule of the United States

(HTSUS), which provides for other footwear with uppers of textile

materials, with soles and uppers of wool felt. The applicable

rate of duty for this provision is 2.8% ad valorem.

In Headquarters Ruling Letter (HRL) 952935 dated January 6,

1993, addressed to counsel for the protestant, Customs revoked DD

863424 holding that the wool felt footwear is properly

classifiable 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. The applicable rate of duty

for this provision is 37.5% ad valorem.

Protestant requests prospective application of HRL 952935

based on its reliance upon DD 863424, evidenced by its contracts,

shipping, import and sales of the felt-soled footwear.

Protestant also asks that the entry covered by DD 863424 be

reliquidated under subheading 6405.20.60, HTSUS.

ISSUE:

Did the protestant reasonably rely on DD 863425 so as to

warrant a delay in the effective date of HRL 952935 pursuant to

section 177.9(d)(3), Customs Regulations (19 CFR 177.9(d)(3))?

LAW AND ANALYSIS:

Section 177.9(d), Customs Regulations (19 CFR 177.9(d)),

reads in pertinent part, as follows:

\(d\) Modification or revocation of ruling letters-(1)

Generally. Any ruling letter found to be in error or not in

accordance with the current views of the Customs Service may be

modified or revoked. Modification or revocation of a ruling

letter shall be effected by Customs Headquarters by giving notice

to the person to whom the ruling letter was addressed and, where

circumstances warrant, by the publication of a notice or other

statement in the Customs Bulletin.

\(2\) Effect of modifications or revocations of ruling

letters. The modification or revocation of a ruling letter will

not be applied retroactively with respect to the person to whom

the ruling was issued, or to any person directly involved in the

transaction to which that ruling related, Provided:

\(i\) The request for a ruling contained no misstatement

or omission of material facts,

\(ii\) The facts subsequently developed are not

materially different from the facts on which the ruling was

based.

\* \* \* \*

Section 177.9(d)(3), Customs Regulations (19 CFR

177.9(d)(3)), reads in pertinent part, as follows:

\(3\) Effective dates. Generally, a ruling letter

modifying or revoking an earlier ruling letter will be effective

on the date it is issued. However, the Customs Service may, upon

application or on its own initiative, delay the effective date of

such a ruling for a period of up to 90 days from the date of

issuance. Such a delay may be granted with respect to the party

to whom the ruling letter was issued or to any other party,

provided such party can demonstrate to the satisfaction of the

Customs Service that they reasonably relied on the earlier ruling

to their detriment . . . .

Protestant asserts that all five conditions of 19 CFR

177.9(d)(2) were met. We are of the opinion that the first two

conditions were not met by the protestant. First, the original

request for a ruling dated May 13, 1991, contains a misstatement

of a material fact. Specifically, protestant stated that the

\"outer sole consists of a layer of wool felt glued to a mid-sole

consisting of rubber . . . .\" In reality the wool 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. See

HRL 952935.

The second condition was not met in that the facts

subsequently developed were materially different from the facts

on which the ruling was based. Specifically, HRL 952935 comments

on this as follows:

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.

In view of the foregoing, it is our position that protestant

is not entitled to a delay in the effective date of HRL 952935.

Protestant also claims that it relied on a letter dated

November 27, 1992, from the Area Director of Customs in New York,

wherein it was stated that DD 863424 \"will continue to be used by

all ports and liquidation of any entries of that merchandise will

not be withheld.\" It is our view that DD 863424 is only

applicable to footwear identical to the footwear described

therein. See 19 CFR 177.9(b)(2). As stated in HRL 952935, the

tariff classification in DD 863424 was based on the description

and sample provided in the May 13, 1991 letter, as well as

protestant\'s assertion that \"the outer sole is of wool felt.\"

The footwear covered by the entry in issue is not identical to

that described in DD 863424.

Protestant claims that pursuant to 19 U.S.C. 1504, the entry

involved was deemed liquidated one year after the date of entry,

which was November 6, 1991. An examination of the ACS record of

extension and liquidation reveals that the entry was properly

extended on August 15, 1992.

It remains our opinion that classification of the wool felt

footwear under subheading 6404.19.35, HTSUS, is correct for the

reasons set out in HRL 952935, HTSUS.

HOLDING:

The protestant is not entitled to a delay in the effective

date of HRL 952935.

The footwear covered by the entry in issue is not identical

to that described in DD 863424. Therefore, protestant was not

justified in relying on a letter from the Area Director of

Customs in New York stating that DD863424 \"will continue to be

used by all ports and liquidation of any entries of that

merchandise will not be withheld.\"

An examination of the ACS record of extension and

liquidation reveals that liquidation of the entry in issue was

properly extended.

The wool felt footwear is dutiable at the rate of 37.5% ad

valorem under subheading 6404.19.35, HTSUS.

The protest should be denied. In accordance with Section

3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993,

Subject: Revised Protest Directive, this decision, together with

the Customs Form 19, should be mailed by your office to the

protestant, through counsel, no later than 60 days from the date

of this letter. Any reliquidation of the entry in accordance

with the decision must be accomplished prior to mailing of the

decision. Sixty days from the date of the decision the Office of

Regulations and Rulings will take steps to make the decision

available to Customs personnel via the Customs Rulings Module in

ACS and the public via the Diskette Subscription Service, Lexis,

Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division