CLA-2 RR:CR:TE 960970 GGD
Port Director
U.S. Customs Service
1205 Royal Lane
DFW Airport, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-97-100218, 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
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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.
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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.
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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