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HQ 960971




September 25, 1998

CLA-2 RR:CR:TE 960971 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. 5501-97-100219, 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

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.

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.

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

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