CLA-2 RR:TR:TC: 958346 CAB
Port Director of Customs
4477 Woodson Road
Suite 200
St. Louis, MO 63134
RE: Request for Further Review of Protest No. 4503-95-100033,
timely filed June 29, 1995, concerning the classification of
women's shoes
Dear Sir:
This is a decision on application for further review of a
protest timely filed by the Fritz Companies on behalf of Shoe
Carnival. There are four entries at issue for Styles: "Janet
II", "Janet II", "Emmi", and "Josie". The first two listed
entries were liquidated on March 31, 1995, the third listed entry
was liquidated on May 12, 1995, and the last listed entry was
liquidated April 21, 1995. The protestant is also attempting to
protest entry concerning Style "Gina". However, this entry was
not listed on Customs Form 19, and therefore, the protest of this
entry is untimely. Customs will address the issues concerning
the protest of the entries timely filed, however, it will not
address any protest issue concerning Style "Gina". Samples of
the entries were submitted to the Customs Laboratory in Chicago,
Illinois. In his submission, the protestant requested copies of
the Customs laboratory worksheets concerning the subject entries.
However, in a telephone conversation on February 1, 1996, with a
Customs Headquarters attorney, the protestant stated that a
decision regarding the protest could be made without Customs
making copies of the laboratory worksheets available to him prior
to the issuance of the protest decision.
FACTS:
The footwear referred to as Janet II, Emmi, and Josie are
comprised of a combination textile, rubber/plastic, and leather
material. "Janet II" is a low-heeled mule style with a
completely open heel. The upper is a solid woven textile
material covering the instep and toes and featuring a large
textile bow at the instep. "Josie" is a flat style shoe with
plastic mesh material considered a textile for tariff
classification purposes. Josie comes in the colors ivory and
gold. "Emmi" is comprised of a linen textile upper, open toe,
open heel, back strap, slip-on bonded leather sole.
The protestant entered the merchandise in subheading
6404.20.4060 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Customs liquidated Styles Janet II,
Emmi, and Josie/Gold in subheading 6404.20.60, HTSUSA. Customs
liquidated Style Josie/Ivory in subheading 6404.20.40, HTSUSA.
ISSUE:
Whether the test results from an independent laboratory that
conflict with the results of a Customs laboratory are acceptable
for tariff classification purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The provisions under consideration are as follows:
Heading 6404, HTSUSA, which provides for footwear with outer
soles of rubber, plastics, leather or composition leather and
uppers of textiles material.
Subheading 6404.20, HTSUSA, which provides for footwear with
outer soles of leather or composition leather:
Not over 50 percent by weight of rubber or plastics and not
over 50 percent by weight of textile materials and rubber or
plastics with at least 10 percent by weight being rubber or
plastics:
6404.20.20 Valued not over $2.50/pair 15%
6404.20.40 Valued over $2.50/pair 10%
6404.20.60 Other 37.5%
Headquarters Ruling Letter (HRL) 082614, dated October 17,
1988, interpreted the language of subheading 6404.20.40, HTSUSA,
which provides for footwear with outer soles of leather or
composition leather and uppers of textile materials not over 50
percent by weight of rubber or plastics and not over 50 percent
by weight of textiles materials, rubber and plastics with at
least 10 percent by weight being rubber or plastics, valued not
over $2.50/pair. HRL 082614 determined that these subheadings
are limited to footwear with fabric uppers and leather or
composition leather soles which are under 10 percent by weight of
rubber and plastics or not over 50 percent by weight of textile
materials, rubber and plastics. Therefore, in order for the
instant footwear to be classified in subheading 6404.20.40, its
rubber and plastic components must comprise less than 10 percent
of the total weight of the footwear.
The protestant states that when properly weighed, the rubber
and plastics components of the subject shoes accounts for less
than 10 percent of the footwear weight. Therefore, Styles Emmi,
Josie, and Janet II are classifiable in subheading 6404.20.40,
HTSUSA. In support of his claim, the protestant submitted
independent laboratory reports from Precision Testing
Laboratories, dated May 1, 1995, concerning each style at issue.
The percentages in the last column indicate composition by
weight. Precision Laboratories Reports for the submitted samples
are as follows:
Josie Plastic and Rubber Size 6 43.51%
Josie Plastic, Rubber, and Textile Size 6 47.48%
Josie Plastic and Rubber Size 8 43.22%
Josie Plastic, Rubber, and Textile Size 8 46.97%
Josie Plastic and Rubber Size 10 46.27%
Josie Plastic, Rubber, and Textile Size 10 49.71%
Emmi Plastic and Rubber Size 6 31.88%
Emmi Plastic, Rubber, and Textile Size 6 48.65%
Emmi Plastic and Rubber Size 8 33.32%
Emmi Plastic, Rubber, and Textile Size 8 46.81%
Janet II Plastic and Rubber Size 8 33.28%
Janet II Plastic, Rubber, and Textile Size 8 48.56%
The Customs Laboratory in Chicago, Illinois tested samples
taken directly from the shipment by a Customs Officer on the date
that the merchandise was released by Customs. The Customs
Laboratory Results are as follows:
Emmi Rubber and Plastics Size 9 27%
Emmi Rubber, Plastics, and Textile Size 9 24%
Emmi Textile Material Size 9 1%
Janet II Rubber and Plastics Size 8 20%
Janet II Rubber, Plastics, and Textile Size 8 25%
Janet II Textile Material Size 8 6%
Josie/Gold Rubber and Plastics Size 10 27%
Josie/Gold Rubber, Plastics, and Textile Size 10 20%
Josie/Gold Textile Material Size 10 4%
Josie/Ivory Rubber and Plastics Size 8 24%
Josie/Ivory Rubber, Plastics, and Textile Size 8 23%
Josie/Ivory Textile Material Size 8 1%
When comparing Customs lab reports to the lab reports from
the Precision Laboratories, the results are significantly
different for supposedly identical merchandise. All of the lab
reports from Precision Testing are dated more than two months
after the importations of the shipments in question. The
protestant has submitted no evidence detailing the origin of the
samples tested by Precision Testing. Thus, there is a question
as to whether Precision Testing actually tested the same
merchandise that was imported from the entries at issue.
The issue of independent laboratory reports which conflicted
with Customs laboratory reports for identical merchandise was
addressed in Headquarters Ruling Letter (HRL) 957282, dated March
28, 1995, stated the following:
In cases such as this, where an outside report is
submitted that differs from the
Customs laboratory report, the Customs laboratory report
cannot be disregarded and,
takes precedence over the outside report. Customs Directive
099 3820-002, dated May 4, 1992. In administering the
HTSUS, Customs must be consistent while classifying the same
type of merchandise entering the U.S. In order to
consistently classify products, the same laboratory analysis
must be executed throughout Customs. Customs cannot rely on
outside reports, which may or may not utilize different
testing methods and still remain consistent in its tariff
classification. Additionally, generally Customs does not
have any evidence that the merchandise tested by the outside
laboratory is the same merchandise that was imported in to
the U.S. Therefore, Customs must rely on its own laboratory
analysis when determining the proper tariff classification
of merchandise.
In light of the cited Customs Directive and the fact that
the importer failed to substantiate that the samples tested by
the private laboratory were from the shipment at issue, the
Customs laboratory report takes precedence over the results of
the tests administered by Precision Testing. Therefore, Styles,
Emmi, Janet II, and Josie/Gold are classifiable in subheading
6404.20.60, HTSUSA, and Style Josie/Ivory is classifiable in
subheading 6404.20.40, HTSUSA.
HOLDING:
Style Josie/Ivory was properly classified in subheading
6404.20.40, HTSUSA, which provides for footwear with outer soles
of rubber or composition leather valued: not over 50 percent by
weight of rubber or plastics and not over 50 percent by weight of
textile material and rubber or plastics with at least 10 percent
by weight being rubber or plastics valued over $2.50/pair. The
applicable rate of duty is 10 percent ad valorem. Styles
Josie/Gold, Emmi, and Janet II were properly classified as
liquidated in subheading 6404.20.60, HTSUSA, which provides for
footwear with outer soles of rubber or composition leather
valued: not over 50 percent by weight of rubber or plastics and
not over 50 percent by weight of textile material and rubber or
plastics with at least 10 percent by weight being rubber or
plastics valued over $2.50/pair, other. The applicable rate of
duty is 37.5 percent ad valorem.
The protest should be denied and a copy of this ruling
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant, 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 Ruling Module in ACS and the public via
the Diskette Subscription Service, Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division