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HQ 960970





July 9, 1998

CLA-2 RR:CR:TE 960970 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.6060

Port Director
U.S. Customs Service
1205 Royal Lane
DFW Airport, Texas 75261

RE: Decision on Application for Further Review of Protest No. 5501-97-100218, 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 March 1997.

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.

The footwear at issue, identified by style name "Bella" and style number 3217, is described as a ladies' tissue faille fabric, slip-on, dress shoe, with a leather sole and an upper composed wholly of textile materials. Customs laboratory report number 5-97-21077-001, dated April 21, 1997, states that the sample analyzed is a woman's "J Renee" brand, slip-on, dress shoe, style "Bella" 3217, size 12M, color: black, which has the following percentage composition, by weight, of all components:

Plastic -- 33.7 percent
Textile -- 23.8 percent
Leather -- 20.9 percent
Paper -- 12.2 percent
Metal -- 9.4 percent

The protestant has submitted an analytical report dated April 23, 1997, performed by Scientific Consulting Laboratories, Inc. (SCLI). The report is identified by SCLI Project Number 2894. The sample shoe tested is identified as "Pattern: Bella, Pattern # S3217, Material: Tissue Faille w/Leather Outsole, Color: Champagne and Size: 8.5N." The results of the analysis indicate, in pertinent part, that the percentage weight of the (textile) fabric components is 17.61 percent, and of the plastic components is 30.82 percent (so that the textile and plastic components comprise 48.43 percent of the total weight of the shoe).

On the Protest form (Customs Form 19), the protestant states that "[t]he tested sample is from this actual shipment." The manufacturer's invoice pertaining to the subject footwear entered, however, states that the color of the ladies' shoe identified by style no. 3217 "Bella" is black (not champagne).

ISSUE:

Whether the independent laboratory's test results, which conflict with those of the Customs laboratory, are considered acceptable to warrant classification of the merchandise in subheading 6404.20.4060, HTSUSA, as women's footwear composed of not over 50 percent by weight of textile materials and rubber or plastics.

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 protestant's statement that the sample shoe tested at the SCLI laboratory was from the actual shipment at issue, the facts that the sample tested by SCLI was champagne in color, that the sample tested at the Customs laboratory was black in color, and that the manufacturer's invoice also describes the shoes of the actual shipment as being black in color, provide a strong indication that the results of testing performed at SCLI on the "Pattern: Bella, Pattern # S3217" shoe are not representative of the shoes from the actual shipment.

In light of the evidence that the sample shoe tested at the independent laboratory was not drawn from the actual shipment, 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. See Headquarters Ruling Letters (HQ) 958346, issued February 6, 1996, and HQ 957282, issued March 28, 1995, for similar resolutions concerning inconsistent laboratory test results.

HOLDING:

The ladies' dress shoe identified by style name "Bella" and style number 3217, 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.

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

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