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HQ 958453




March 4, 1996
CLA-2 RR:TC:TE CAB 958453

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.20

Port Director
U.S. Customs Service
Federal Building, Rm. 198
511 NW Broadway
Portland, OR 97209

RE: Request for Further for Review of Protest No. 2904-95-100190, timely filed July 27, 1995

Dear Port Director:

This is regarding an application for further review of a protest timely filed by George. S. Bush Co., on behalf of Liberty Organization Inc, on July 27, 1995. The merchandise at issue is men's footwear. No sample was submitted for examination.

FACTS:

There are marked discrepancies involving the protestant's description of the footwear at issue on the International Footwear Association Form (IFA), dated November 22, 1989, and an undated Footwear Worksheet also submitted by the protestant. The IFA describes the footwear as having an upper external surface, excluding accessories and reinforcements, of 85 percent textile and 15 percent rubber and/or plastics. The Footwear Worksheet describes the subject footwear as 15 percent textile and 85 percent rubber and/or plastics. The protestant also submitted literature which describes the subject footwear, referred to as the Everest as:

Designed for high altitude and technical ice climbing, the Everest surrounds the foot with 13mm+ of Aveolite foam insulation. The boot is made from a thin layer of P-bax nylon with 5 mm+ Aveolite laminated to the inside of the shell. Three1-1/2" Velcro straps, two in the front and one in the rear...Full carbon-fiber shanks and P-bax midsoles provide a rigid sole..The integral supergaiter is made from Gore-tex and Cordura nylon, and is lined with Aveolite. A 2" high-friction rubber rand protects and seals the lower part of the gaiter. Close cropped Vibram soles with toe and heel lips accommodate clip-on crampons
and ski mountaineering bindings. The inner boot is the K2 Aveolite with 7 mm of insulation and molder thermoplastic sole.

In a letter dated December 5, 1994, an employee of the protestant's company, stated that the Gore-tex fabric described in the literature has been replaced with coated nylon. However, the description literature continues to describe the Everest boot as possessing Gore-tex fabric.

The protestant claims the merchandise is properly classifiable in subheading 6402.19.90 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other footwear with outer soles and uppers of rubber or plastics. Customs liquidated the merchandise in subheading 6404.19.20, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.

ISSUE:

What is the proper tariff classification of the merchandise at issue?

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.

Heading 6402, HTSUSA, is the provision for other footwear with outer soles and uppers of rubber or plastics. Heading 6404, HTSUSA, is the provision for footwear with outer soles of rubber, plastics, leather or composition leather and upper of textile materials. The protestant claims that the subject merchandise is classifiable under Heading 6402, HTSUSA. However, the protestant has not submitted a sample to Customs Headquarters to substantiate his claim. Moreover, the protestant has presented Customs with contradictory information concerning the description of the footwear.

Given the fact that there are distinct discrepancies concerning the protestant's description of the merchandise at issue and no sample was presented to Customs Headquarters, this office is of the opinion that the protestant failed to substantiate his claim that the subject merchandise is classifiable under Heading 6402, HTSUSA. Therefore, the subject merchandise remains classified under Heading 6404, HTSUSA.

HOLDING:

Based on the foregoing, the subject footwear is classifiable in subheading 6404.19.20, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.

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 made 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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