HQ 958346

February 6, 1996

CLA-2 RR:TR:TC: 958346 CAB

CATEGORY: Classification

TARIFF NO.: 6404.20.40; 6404.20.60

Port Director of Customs

4477 Woodson Road

Suite 200

St. Louis, MO 63134

RE: Request for Further Review of Protest No. 4503-95-100033,

timely filed June 29, 1995, concerning the classification of

women\'s shoes

Dear Sir:

This is a decision on application for further review of a

protest timely filed by the Fritz Companies on behalf of Shoe

Carnival. There are four entries at issue for Styles: \"Janet

II\", \"Janet II\", \"Emmi\", and \"Josie\". The first two listed

entries were liquidated on March 31, 1995, the third listed entry

was liquidated on May 12, 1995, and the last listed entry was

liquidated April 21, 1995. The protestant is also attempting to

protest entry concerning Style \"Gina\". However, this entry was

not listed on Customs Form 19, and therefore, the protest of this

entry is untimely. Customs will address the issues concerning

the protest of the entries timely filed, however, it will not

address any protest issue concerning Style \"Gina\". Samples of

the entries were submitted to the Customs Laboratory in Chicago,

Illinois. In his submission, the protestant requested copies of

the Customs laboratory worksheets concerning the subject entries.

However, in a telephone conversation on February 1, 1996, with a

Customs Headquarters attorney, the protestant stated that a

decision regarding the protest could be made without Customs

making copies of the laboratory worksheets available to him prior

to the issuance of the protest decision.

FACTS:

The footwear referred to as Janet II, Emmi, and Josie are

comprised of a combination textile, rubber/plastic, and leather

material. \"Janet II\" is a low-heeled mule style with a

completely open heel. The upper is a solid woven textile

material covering the instep and toes and featuring a large

textile bow at the instep. \"Josie\" is a flat style shoe with

plastic mesh material considered a textile for tariff

classification purposes. Josie comes in the colors ivory and

gold. \"Emmi\" is comprised of a linen textile upper, open toe,

open heel, back strap, slip-on bonded leather sole.

The protestant entered the merchandise in subheading

6404.20.4060 of the Harmonized Tariff Schedule of the United

States Annotated (HTSUSA). Customs liquidated Styles Janet II,

Emmi, and Josie/Gold in subheading 6404.20.60, HTSUSA. Customs

liquidated Style Josie/Ivory in subheading 6404.20.40, HTSUSA.

ISSUE:

Whether the test results from an independent laboratory that

conflict with the results of a Customs laboratory are acceptable

for tariff classification purposes?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the

General Rules of Interpretation (GRI\'s). GRI 1 provides that

classification shall be determined according to the terms of the

headings and any relative section or chapter notes. Merchandise

that cannot be classified in accordance with GRI 1 is to be

classified in accordance with subsequent GRI\'s taken in order.

The provisions under consideration are as follows:

Heading 6404, HTSUSA, which provides for footwear with outer

soles of rubber, plastics, leather or composition leather and

uppers of textiles material.

Subheading 6404.20, HTSUSA, which provides for 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:

6404.20.20 Valued not over \$2.50/pair 15%

6404.20.40 Valued over \$2.50/pair 10%

6404.20.60 Other 37.5%

Headquarters Ruling Letter (HRL) 082614, dated October 17,

1988, interpreted the language of subheading 6404.20.40, HTSUSA,

which provides for footwear with outer soles of leather or

composition leather and uppers of textile materials not over 50

percent by weight of rubber or plastics and not over 50 percent

by weight of textiles materials, rubber and plastics with at

least 10 percent by weight being rubber or plastics, valued not

over \$2.50/pair. HRL 082614 determined that these subheadings

are 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

rubber and plastic components must comprise less than 10 percent

of the total weight of the footwear.

The protestant states that when properly weighed, the rubber

and plastics components of the subject shoes accounts for less

than 10 percent of the footwear weight. Therefore, Styles Emmi,

Josie, and Janet II are classifiable in subheading 6404.20.40,

HTSUSA. In support of his claim, the protestant submitted

independent laboratory reports from Precision Testing

Laboratories, dated May 1, 1995, concerning each style at issue.

The percentages in the last column indicate composition by

weight. Precision Laboratories Reports for the submitted samples

are as follows:

Josie Plastic and Rubber Size 6 43.51%

Josie Plastic, Rubber, and Textile Size 6 47.48%

Josie Plastic and Rubber Size 8 43.22%

Josie Plastic, Rubber, and Textile Size 8 46.97%

Josie Plastic and Rubber Size 10 46.27%

Josie Plastic, Rubber, and Textile Size 10 49.71%

Emmi Plastic and Rubber Size 6 31.88%

Emmi Plastic, Rubber, and Textile Size 6 48.65%

Emmi Plastic and Rubber Size 8 33.32%

Emmi Plastic, Rubber, and Textile Size 8 46.81%

Janet II Plastic and Rubber Size 8 33.28%

Janet II Plastic, Rubber, and Textile Size 8 48.56%

The Customs Laboratory in Chicago, Illinois tested samples

taken directly from the shipment by a Customs Officer on the date

that the merchandise was released by Customs. The Customs

Laboratory Results are as follows:

Emmi Rubber and Plastics Size 9 27%

Emmi Rubber, Plastics, and Textile Size 9 24%

Emmi Textile Material Size 9 1%

Janet II Rubber and Plastics Size 8 20%

Janet II Rubber, Plastics, and Textile Size 8 25%

Janet II Textile Material Size 8 6%

Josie/Gold Rubber and Plastics Size 10 27%

Josie/Gold Rubber, Plastics, and Textile Size 10 20%

Josie/Gold Textile Material Size 10 4%

Josie/Ivory Rubber and Plastics Size 8 24%

Josie/Ivory Rubber, Plastics, and Textile Size 8 23%

Josie/Ivory Textile Material Size 8 1%

When comparing Customs lab reports to the lab reports from

the Precision Laboratories, the results are significantly

different for supposedly identical merchandise. All of the lab

reports from Precision Testing are dated more than two months

after the importations of the shipments in question. The

protestant has submitted no evidence detailing the origin of the

samples tested by Precision Testing. Thus, there is a question

as to whether Precision Testing actually tested the same

merchandise that was imported from the entries at issue.

The issue of independent laboratory reports which conflicted

with Customs laboratory reports for identical merchandise was

addressed in Headquarters Ruling Letter (HRL) 957282, dated March

28, 1995, stated the following:

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. Customs Directive

099 3820-002, dated May 4, 1992. In administering the

HTSUS, Customs must be consistent while classifying the same

type of merchandise entering the U.S. In order to

consistently classify products, the same laboratory analysis

must be executed throughout Customs. 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.

In light of the cited Customs Directive and the fact that

the importer failed to substantiate that the samples tested by

the private laboratory were from the shipment at issue, the

Customs laboratory report takes precedence over the results of

the tests administered by Precision Testing. Therefore, Styles,

Emmi, Janet II, and Josie/Gold are classifiable in subheading

6404.20.60, HTSUSA, and Style Josie/Ivory is classifiable in

subheading 6404.20.40, HTSUSA.

HOLDING:

Style Josie/Ivory was properly classified in subheading

6404.20.40, HTSUSA, which provides for footwear with outer soles

of rubber or composition leather valued: not over 50 percent by

weight of rubber or plastics and not over 50 percent by weight of

textile material and rubber or plastics with at least 10 percent

by weight being rubber or plastics valued over \$2.50/pair. The

applicable rate of duty is 10 percent ad valorem. Styles

Josie/Gold, Emmi, and Janet II were properly classified as

liquidated in subheading 6404.20.60, HTSUSA, which provides for

footwear with outer soles of rubber or composition leather

valued: not over 50 percent by weight of rubber or plastics and

not over 50 percent by weight of textile material and rubber or

plastics with at least 10 percent by weight being rubber or

plastics valued over \$2.50/pair, other. The applicable rate of

duty is 37.5 percent ad valorem.

The protest should be denied and a copy of this ruling

should be attached to the Customs Form 19 and provided to the

protestant as part of the notice of action.

In accordance with Section 3(A)(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 Ruling Module in ACS and the public via

the Diskette Subscription Service, Freedom of Information Act and

other public access channels.

Sincerely,

John Durant, Director

Tariff Classification Appeals

Division