CLA-2 RR:CR:TE 960226 GGD

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

RE: Decision on Application for Further Review of Protest No. 5501-96-100380, filed December 5, 1996, concerning the classification of women's shoes

Dear Sir:

This is a decision on a protest timely filed on December 5, 1996, against your decision in the classification and liquidation of women's footwear entered in August 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 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. -2-

The footwear at issue, identified by style name "Coy" and by style number KL5686, is described on the packing list as "Coy-Nailhead Glitter Lace." Customs laboratory report number 5-96-20761-001, dated August 29, 1996, states that the sample analyzed is a woman's "J Renee" brand, slip-on shoe, style KL-5686, Size: 8M, Color: Black, which has an external surface area of the upper (ESAU) that is wholly of textile, and a leather sole which is affixed to the upper with adhesive. The shoe was found to have the following percentage composition, by weight, of all components:

Plastic -- 28.0 percent Textile -- 25.8 percent Leather -- 21.3 percent Paper -- 17.1 percent Metal -- 7.8 percent

The protestant has submitted an analytical report dated October 7, 1996, performed by Scientific Consulting Laboratories, Inc. (SCLI). The report is identified by SCLI Project Number 2789. The sample lady's shoe tested is designated as "Pattern: Coy, Model #5686 and Material - nail head glitter lace." The results of the analysis indicate that the percentage weight of the (textile) fabric components is 19.3 percent, and of the plastic components is 28.5 percent (so that the textile and plastic components comprise 47.8 percent of the total weight of the shoe).

On the Protest form (Customs Form 19), the protestant states that SCLI's analysis "was performed on a shoe taken from this actual shipment." On the Interim Footwear Invoice prepared by the manufacturer, instead of placing an "X" in choice "a." in response to question 20 (which would have asserted that style "Coy #5686" possessed not over 50% by weight of textile materials, rubber and plastics), choice "b." is marked (which indicates only that the shoe possesses uppers composed of vegetable fibers).

ISSUE:

Whether the independent laboratory's test results, which 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. -3-

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.

Subheading 6404.20.4060, HTSUSA, could be found to apply if there were no conflicting evidence as to the percentage weight of the textile materials and rubber or plastics which comprise the shoe. Evidence contained on the Interim Footwear Invoice strongly indicates the manufacturer's awareness that the shoes contained in the shipment were over 50 percent by weight of textile materials, rubber and plastics. Although the protestant states that the shoe analyzed by SCLI was drawn from the same shipment, the record contains no evidence to support the statement nor any explanation as to the weight discrepancy. In light of the above, 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 "Coy" and by style number KL5686, 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. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. -4-

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