CLA-2 RR:CR:TE 960226 GGD
Port Director
U.S. Customs Service
1205 Royal Lane
DFW Airport, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-96-100380, filed December 5, 1996, concerning the
classification of women's shoes
Dear Sir:
This is a decision on a protest timely filed on December 5,
1996, against your decision in the classification and liquidation
of women's footwear entered in August 1996.
FACTS:
You classified the merchandise under subheading
6404.20.6060, HTSUSA, the provision for "Footwear with outer
soles of rubber, plastics, leather or composition leather and
uppers of textile materials: Footwear with outer soles of leather
or composition leather: Other, For women," with an applicable
duty rate of 37.5 percent ad valorem.
The protestant claims that the goods should be classified in
subheading 6404.20.4060, HTSUSA, the provision for "Footwear with
outer soles of rubber, plastics, leather or composition leather
and uppers of textile materials: 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: Valued over $2.50/pair, For
women," with an applicable duty rate of 10 percent ad valorem.
-2-
The footwear at issue, identified by style name "Coy" and by
style number KL5686, is described on the packing list as "Coy-Nailhead Glitter Lace." Customs laboratory report number
5-96-20761-001, dated August 29, 1996, states that the sample
analyzed is a woman's "J Renee" brand, slip-on shoe, style KL-5686, Size: 8M, Color: Black, which has an external surface area
of the upper (ESAU) that is wholly of textile, and a leather sole
which is affixed to the upper with adhesive. The shoe was found
to have the following percentage composition, by weight, of all
components:
Plastic -- 28.0 percent
Textile -- 25.8 percent
Leather -- 21.3 percent
Paper -- 17.1 percent
Metal -- 7.8 percent
The protestant has submitted an analytical report dated
October 7, 1996, performed by Scientific Consulting Laboratories,
Inc. (SCLI). The report is identified by SCLI Project Number
2789. The sample lady's shoe tested is designated as "Pattern:
Coy, Model #5686 and Material - nail head glitter lace." The
results of the analysis indicate that the percentage weight of
the (textile) fabric components is 19.3 percent, and of the
plastic components is 28.5 percent (so that the textile and
plastic components comprise 47.8 percent of the total weight of
the shoe).
On the Protest form (Customs Form 19), the protestant states
that SCLI's analysis "was performed on a shoe taken from this
actual shipment." On the Interim Footwear Invoice prepared by
the manufacturer, instead of placing an "X" in choice "a." in
response to question 20 (which would have asserted that style
"Coy #5686" possessed not over 50% by weight of textile
materials, rubber and plastics), choice "b." is marked (which
indicates only that the shoe possesses uppers composed of
vegetable fibers).
ISSUE:
Whether the independent laboratory's test results, which
conflict with the test results obtained by the Customs
laboratory, are considered acceptable to warrant classification
of the merchandise in subheading 6404.20.4060, HTSUSA, the
provision for women's footwear composed of not over 50 percent by
weight of textile materials and rubber or plastics.
-3-
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Subheading 6404.20.4060, HTSUSA, could be found to apply if
there were no conflicting evidence as to the percentage weight of
the textile materials and rubber or plastics which comprise the
shoe. Evidence contained on the Interim Footwear Invoice
strongly indicates the manufacturer's awareness that the shoes
contained in the shipment were over 50 percent by weight of
textile materials, rubber and plastics. Although the protestant
states that the shoe analyzed by SCLI was drawn from the same
shipment, the record contains no evidence to support the
statement nor any explanation as to the weight discrepancy. In
light of the above, we find that the results of the Customs
laboratory testing take precedence over the test results obtained
by SCLI. The ladies' footwear was properly classified in
subheading 6404.20.6060, HTSUSA, the classification assessed on
the currently protested entry.
HOLDING:
The ladies' shoe identified by style name "Coy" and by style
number KL5686, is classified in subheading 6404.20.6060, HTSUSA,
the provision for "Footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of textile materials:
Footwear with outer soles of leather or composition leather:
Other, For women." The general column one duty rate is 37.5
percent ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant. Any additional Applications for Further Review
currently being held in abeyance and involving merchandise and
issues similar to those of the instant case should be disposed of
by your office in a manner consistent with the analysis and
holding above.
-4-
In accordance with Section 3A(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 Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division