CLA-2-42: RR: CR:TE 962740 JFS
Category: Classification
Port Director
United States Customs Service
2nd & Chestnut Streets
Philadelphia, PA 19106
RE: Decision on Application for Further Review of Protest No. 1101-98-100031; Classification of Women’s Footwear; Customs Laboratory Results, Presumption of Correctness.
Dear Port Director:
This is a decision on an application for further review (AFR) of a protest timely filed on April 16, 1998, by Grunfeld, Desiderio, Lebowitz & Silverman, LLP, on behalf of Nine West Distribution Corp. The protest concerns the classification and liquidation of two entries of women’s footwear entered on January 16, 1998.
FACTS:
You classified the ladies footwear, style C-Partytime, in subheading 6404.20.6060, Harmonized Tariff Schedule United States Annotated (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 a general column one duty rate of 37.5 percent ad valorem.
The protestant claims that the footwear is classified under subheading 6404.20.4060, HTSUSA, which is 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 a general column one duty rate of 10 percent ad valorem.
Style C-Partytime is described as an open heel and an open toe shoe, with an upper of textile material and an outer sole which is wholly of leather. Customs obtained a sample, size 9M, from the entries in question and had it examined by the Customs Laboratory to determine the composition by weight. The shoe had the following composition by weight:
Textile Material 14.0%
Rubber/Plastic 36.4%
Leather 16.8%
Paper 17.1%
Metal 15.1%
Based on these figures, the combined percentage weight of textile rubber and plastics is 50.4%. Customs conducted a second test on the footwear and obtained nearly identical results.
To counter Customs finding, the Protestant submitted lab results, dated March 4, 1997, from Consumer Testing Laboratories, Inc. (CTL). The shoe tested by CTL was a size six medium. According to CTL’s findings, the shoe had the following composition by weight:
Textile Material 13.3%
Rubber/Plastic 35.0%
Leather 23.6%
Cardboard 13.8%
Metal 14.3%
According to the CTL results, the combined percentage weight of textile rubber and plastics is 48.3%. The protestant conducted a second round of tests on the shoe examined previously and obtained nearly identical results.
ISSUE:
Whether there is sufficient evidence to overcome the determination by the Customs Laboratory that the footwear at issue is composed of 50.4% textiles rubber and plastics.
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 Protestant asserts that, based on the CTL results, the footwear should be classified under subheading 6404.20.40, HTSUSA. In HQ 082614, dated October 17, 1988, Customs determined that the language of subheading 6404.20.40, HTSUSA, 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.
Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the Customs laboratory is in error, or that the Customs' laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. In Alcoa, the importer was able to overcome the presumption of correctness afforded Customs by clearly establishing that the samples tested by the importer were taken from the shipment under question as it arrived in the U.S. Moreover, the samples were analyzed by the importer’s own chemists as well as two independent labs using the published Customs Lab Method, which was considered reliable by both sides.
In this case, although the Protestant has provided results contrary to those of the Customs laboratory, the Protestant has failed to establish a prima facie case that the methods used by the Customs laboratory are in error or that the results are erroneous. 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. See, HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). “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.” HQ 957282. See also HQ 958346, dated February 6, 1996.
In this case, the protestant, unlike the plaintiff in Alcoa, has provided no evidence CTL tested samples from the entries at issue. The protestant has also failed to demonstrate that the methods used by the Customs laboratory were in error, or that the results were erroneous. Accordingly, the Customs laboratory report takes precedence over the results of the tests administered by the protestant’s private laboratory. The ladies' footwear was properly classified in subheading 6404.20.6060, HTSUSA.
HOLDING:
The Protest should be denied. The footwear, style C-Partytime, is classified 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 a general column one duty rate of 37.5 percent ad valorem.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be mailed by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.
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.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division