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HQ 958346




February 6, 1996
CLA-2 RR:TR:TC: 958346 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.40; 6404.20.60

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

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