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HQ 962521





July 11, 2002

CLA-2 RR:CR:TE 962521 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.4060

United States Customs Service
C\O Chief, Residual Liquidation and Protest Branch 1 Penn Plaza, 10th Floor
New York, NY 10119

RE: Protest with Application for Further Review, Protest Number 1001-98-101360

Dear Madam:

This letter is in response to protest number 1001-98-101360 with application for further review timely filed on May 21, 1998, by Coudert Brothers, on behalf of Kenneth Cole Productions, Inc. (KCP). The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of women’s dress shoes.

FACTS:

Customs classified the shoes at issue 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 protestant claims that the footwear 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."

Two styles of ladies footwear at are issue, style “Up-Front II” (Style No. 07558) and style “X-TREME” (Style No. 07021), both of which have uppers of textile material and outer soles of leather. Customs laboratory report number 2-97-10998-001, dated September 11, 1997, found style Up-Front II to have the following percentage composition, by weight, of all components:

Rubber/Plastic 41.1 %
Textile 9.8 %
Leather 26.6 %
Paper 16.8 %
Metal 5.7 %

The results of the Customs report show that the percentage weight of the textile fabric components is 9.8 %, and of the rubber/plastic components is 41.1%. The textile and rubber/plastic components combined comprise 50.9% of the total weight of the shoe.

Subsequently, the Customs laboratory tested additional samples of style Up-Front II. Customs laboratory report number NY20010604, dated July 9, 2001, found the shoe to have the following percentage composition, by weight, of all components:

Rubber/Plastic 29.0 %
Textile 9.5 %
Leather 43.3 %
Paper 12.2 %
Metal 6.0 %

These results show that the percentage weight of the textile fabric components is 9.5 %, and of the rubber/plastic components is 29.0%. The textile and rubber/plastic components combined comprise 38.5% of the total weight of the shoe.

The protestant submitted four lab reports completed by Consumer Testing Laboratories, Inc. refuting the findings of the Customs Laboratory. The results show style Up-Front II to have the following percentage composition, by weight, of all components:

Report #
Date
Size
Weight %
Rubber/Plastics
Weight %
Textile
Weight %
Rubber/Plastics & Textile
N44980
4/22/98

7

29.15

9.81

38.96
N44979
4/22/98

9

28.84

9.98

38.82
N44982
4/24/98

9.5

29.83

9.53

39.36
N44981
4/24/98

6

29.46

9.41

38.87

Customs laboratory report number 2-97-10995-001, dated September 26, 1997, found style X-TREME to have the following percentage composition, by weight, of all components:

Rubber/Plastic 35.4%
Textile 15.3%
Leather 18.4 %
Paper 12.6 %
Metal 18 %
Cork 0.3 %

The results of the Customs report show that the percentage weight of the textile fabric components is 15.3%, and of the rubber/plastic components is 35.4%. The textile and rubber/plastic components combined comprise 50.7% of the total weight of the shoe.

Subsequently, the Customs laboratory tested two additional samples of style X-TREME. Customs laboratory report number SV20011851, dated November 27, 2001, found the shoe to have the following percentage composition, by weight, of all components:

Size 6 Size 9
Rubber/Plastic 33.8 % 33.8 %
Textile 15.0 % 14.7 %
Leather 19.3 % 20.0 %
Paper 12.6 % 14.3 %
Metal 18.8 % 16.8 %
Cork 0.5 % 0.4 %

These results show that the percentage weight of the textile fabric components is 15 % and 14.7 %, and of the rubber/plastic components is 33.8%. The textile and rubber/plastic components combined comprise 48.8% for the size 6 shoe and 48.5% for the size 9 shoe of the total weight of the shoe.

The protestant submitted two lab reports completed by Consumer Testing Laboratories, Inc. refuting the findings of the Customs Laboratory. The results show style X-TREME to have the following percentage composition, by weight, of all components:

Report #
Date
Size
Weight %
Rubber/Plastics
Weight %
Textile
Weight %
Rubber/Plastics & Textile
N44977
4/23/986

7

34.79

13.78

48.57
N4497
4/23/98

9

34.26

14.28

48.54

Additionally, the Protestant submitted the following documents regarding the composition of styles Up-front II and X-TREME:

1. Statement by CHEMI Calzados, S.L., the manufacturer of style X-TREME, certifying that the shipments of this style which were covered by the KCP purchase orders and Chemi Calzados invoices, were less than 50% by weight of textiles and rubber/plastic, in accordance with KCP’s specifications.

2. Statement by Mondial Export S.L., the manufacturer of style Up-Front II, certifying that the shipments of this style, which were covered by the listed KCP purchase orders and Mondial invoices, were less than 50% by weight of textiles and rubber/plastic, in accordance with KCP’s specifications.

3. Statement by the Manager Director of Style Council, certifying that the shipments of the two styles covered by the listed invoices are less than 50% by weight of textiles and rubber/plastics and advising that Style Council employed an ohaus triple beam gram scale to perform composition testing of samples of the footwear.

ISSUE:

What is the proper classification of the footwear under the HTSUSA?

LAW AND ANALYSIS:

Classification under the HTSUSA 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 tariff provision at issue in this Protest is subheading 6404.20.40, HTSUSA. In HQ 082614, dated October 17, 1988, Customs interpreted the language of subheading 6404.20.40, HTSUSA, to mean that the subheading is 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 textile and rubber/plastic components must comprise less than 50 percent of the total weight of the footwear. The Protestant contested the original findings of the Customs laboratory that the textile and rubber/plastics components compose more than 50% of the total weight of the shoe. The second round of testing of samples of the shoe found that the textile and rubber/plastic components compose less than 50 percent of the total weight of the shoes. Accordingly, the protest should be allowed.

HOLDING:

The protest is granted. Styles “Up-Front II” (Style No. 07558) and style “X-TREME” (Style No. 07021) are 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.” The applicable duty rate is 10 percent ad valorem.

The protest should be ALLOWED. 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 latter 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 the decision.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general 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 other public access channels

Sincerely,

Myles B. Harmon, Acting Director

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