CLA-2 RR:CR:TE 960971 GGD
Port Director
U.S. Customs Service
1205 Royal Lane
DFW Airport, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-97-100219, filed July 9, 1997, concerning the
classification of women's shoes
Dear Sir:
This is a decision on a protest timely filed on July 9,
1997, against your decision in the classification and liquidation
of women's footwear entered in December 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 6403.99.9065, HTSUSA, the provision for "Footwear with
outer soles of rubber, plastics, leather or composition leather
and uppers of leather: Other footwear: Other: Other: Other: For
other persons: Valued over $2.50/pair: Other: Other: For women:
Other," with an applicable duty rate of 10 percent ad valorem.
The footwear at issue, identified by style name "Diamond"
and by style number 3497, is described on the packing list as
"Ladies' Denim Fabric Shoes." Customs laboratory report number
-2-
5-97-20796-001, dated January 15, 1997, states that the sample
analyzed is a woman's "J Renee" brand, slip-on, flat, style 3497
"Diamond," size 9M, Color: LT. Blue Denim, which has an upper
composed of textile, with 93 pieces of clamped-on metal
ornamentations, and a leather sole that is affixed to the upper
with adhesive. The shoe was found to have the following
percentage composition, by weight, of all components:
Plastic -- 31.3 percent
Textile -- 24.0 percent
Leather -- 20.3 percent
Paper -- 13.8 percent
Metal -- 10.6 percent
The protestant has submitted an analytical report dated
January 28, 1997, performed by Scientific Consulting
Laboratories, Inc. (SCLI). The report is identified by SCLI
Project Number 2834. The sample lady's shoe tested is designated
as "Prewash Diamond Denim." The results of the analysis indicate
that the percentage weight of the (textile) fabric components is
20.26 percent, and of the plastic components is 29.27 percent (so
that the textile and plastic components comprise 49.53 percent of
the total weight of the shoe).
Although the SCLI results also indicate that the percentage
weight of the shoe's leather components is 22.40 percent, the
report does not distinguish the composition of the shoe's upper
from that of the sole. The only evidence that the shoe has an
upper composed of leather and a sole composed of rubber and/or
plastics is contained on the Interim Footwear Invoice prepared by
the manufacturer. Blanks 1 through 4 are marked to indicate that
on the style identified as Diamond #3497, the greatest portion of
the external surface area of the upper (ESAU), excluding
accessories, reinforcements, etc., is leather, and that the
greatest portion of the external surface area of the sole is
rubber and/or plastics.
ISSUE:
Whether the independent laboratory's test results, which do
not support the classification claimed by protestant but do
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.
Despite the shoe manufacturer's representations on the
Interim Footwear Invoice that the "Diamond #3497" shoe has an
upper of leather and a sole of rubber and/or plastics, the fact
that SCLI performed a weight breakdown of the shoe indicates that
the sample it analyzed did not have a leather upper.
Classifications under subheading 6403.99, HTS, are not affected
by the weight breakdown of a shoe. Examination of the sample
shoe taken from the subject shipment and the results of Customs
laboratory analysis also strongly indicate that the shoe has
neither an upper of leather nor a sole of rubber and/or plastics.
The shoe is not classified in subheading 6403.99.9065, HTSUS, as
claimed by the protestant.
Subheading 6404.20.4060, HTSUSA, provides 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." This particular provision could conceivably apply in the
absence of conflicting evidence as to the percentage weight of
the textile materials and rubber or plastics which comprise the
shoe. Although SCLI's finding that textile materials and rubber
or plastics make up 49.53 percent of the shoe's weight - barely
under the pertinent threshold of 50 percent - Customs finding of
55.30 percent significantly exceeds the threshold percentage
weight. Further, the SCLI report offers no statement as to the
composition of the shoe's sole. In light of these facts, the
protestant's inaccurately claimed provision, and the
manufacturer's false representations on the Interim Footwear
Invoice, we find that the results of the Customs laboratory
testing take precedence over the test results obtained by SCLI.
-4-
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 "Diamond" and
style number 3497, 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 accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you are to mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries 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 make the decision available to
Customs personnel, and to the public on the Customs Home Page on
the World Wide Web at www.customs.ustreas.gov, by means of the
Freedom of Information Act, and by other methods of public
distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division