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HQ 954184


November 12, 1993

CLA-2 CO:R:C:M 954184 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.40; 6404.20.60

Area Director of Customs
JFK Airport Area
Building 178
Jamaica, New York 11430

RE: Protest 1001-92-102593; Footwear; Slippers, ladies'; Weight breakdown

Dear Sir:

The following is our decision regarding the request for further review of Protest 1001-92-102593 dated April 8, 1992, concerning the tariff classification of ladies' slippers manufactured in either the Philippines or Taiwan.

FACTS:

The footwear involved consists of three styles of ladies' slippers. Style 8888 is constructed of a velour upper (comprised of a 75% cotton/25% polyester blend, pigsuede outer sole, foam and spun poly batting cushioning and an elastic securing band. Style 6699 is constructed of a 2 ply nylon spandex upper (comprised of a 90% nylon/10% spandex blend), pigsuede outer sole, a 56% cotton/44% polyester inner sole, foam and spun poly batting cushioning and an elastic securing band. Style 2590 is constructed of a textile upper (consisting of either a 76% polyester/12% cotton/12% rayon blend or a 88% polyester/12% cotton blend), pigsuede outer sole, 100% polyester inner sole, foam and spun poly batting cushioning and an elastic securing band.

The entries covering these slippers were liquidated on January 10, 1992, at the rate of 37.5% ad valorem under subheading 6404.20.60, Harmonized Tariff Schedule of the United States (HTSUS). The protest was timely filed on April 8, 1992. The protestant asserts that all three styles are properly classifiable under subheading 6404.20.40, HTSUS, with duty at the rate of 10% ad valorem.

ISSUE:

Are these slippers less than 10% by weight of rubber or plastics or not over 50% by weight of textile materials and rubber or plastics?

LAW AND ANALYSIS:

The competing provisions are as follows:

6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:

6404.20 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:

6404.20.40 valued over $2.50/pair. . . 10%

6404.20.60 Other. . . . . . . . . . . . . . .37.5%

Samples of all three styles were analyzed by the Customs laboratory. The results of the analyses set forth in Customs Laboratory Report no. 2-92-11593-003 dated August 14, 1992, are as follows:

Style 6699 consists by weight of 83% textile, 13.8% leather, and 3.2% rubber or plastics.

Style 8888 consists by weight of 82.2% textile, 13.1% leather and 4.7% rubber or plastics.

Style 2590 consists of 77% textile, 12.6% leather and 10.4% rubber or plastics.

Noting that styles 6699 and 8888 are less than 10% by weight of rubber or plastics, it is our position that they are properly classifiable as claimed under subheading 6404.20.40, HTSUS.

Classification under subheading 6404.20.60, HTSUS, is appropriate for style 2590, noting that it is over 10% by weight of rubber and plastics and over 50% by weight of textile materials and rubber or plastics.

The protestant asserts that style 2590 must be the same as style 6699 and 8888 (i.e., containing less that 10% by weight of rubber or plastics), even though he has not presented any evidence that the result reached by the Customs laboratory is erroneous. As support for this assertion, protestant argues that due to the manufacturer's quality control procedures the quantity of rubber or plastics contained in the slipper would, in each instance, be less than 10% of the total weight of the article. Further, protestant has submitted a copy of United States Testing Company's laboratory Report dated April 8, 1992, which shows that style 2590 contained less than 10% by weight of rubber or plastics.

It appears unlikely to us that the manufacturer's quality control can guarantee that the weight of the plastic or rubber in the footwear involved will always contain significantly less than 10% by weight of rubber or plastics material. Further, we note that the United States Testing Company"s Laboratory Report does not identify the samples tested with any of the entries covered by the protest. Also, that analysis was performed more than four months before Customs conducted its analyses of the footwear.

Protestant has suggested that additional samples of style 2590 be submitted for a weight analyses and that a determination of whether rubber or plastics constitute over 10% of the total weight of the shoe would depend on the average weight of the samples. This suggestion is unacceptable because due to the passage of time the origin of the additional samples submitted would be difficult to ascertain.

In addition to the Customs laboratory report showing different weight breakdowns, we note that the description on the invoice for style 2590 includes "100 percent Foam," unlike the description (on CE K59-xxxxxxxx) for styles 6699 and 8888.

HOLDING:

Styles 6699 and 8888 are dutiable at the rate of 10% ad valorem under subheading 6404.20.40, HTSUS.

Style 2590 is dutiable at the rate of 37.5% ad valorem under subheading 6404.20.60, HTSUS.

The protest should be allowed in part for styles 6699 and 8888 and denied in part for style 2590. 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

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