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  | S   | Weight %       | Weight % | Weight %                |
| \#      | ize |                |          |                         |
|         |     | R              | Textile  | Rubber/Plastics &       |
| Date    |     | ubber/Plastics |          | Textile                 |
+---------+-----+----------------+----------+-------------------------+
| N44980  | 7   | 29.15          | 9.81     | 38.96                   |
|         |     |                |          |                         |
| 4/22/98 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+
| N44979  | 9   | 28.84          | 9.98     | 38.82                   |
|         |     |                |          |                         |
| 4/22/98 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+
| N44982  | 9.5 | 29.83          | 9.53     | 39.36                   |
|         |     |                |          |                         |
| 4/24/98 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+
| N44981  | 6   | 29.46          | 9.41     | 38.87                   |
|         |     |                |          |                         |
| 4/24/98 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+

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  | S   | Weight %       | Weight % | Weight %                |
| \#      | ize |                |          |                         |
|         |     | R              | Textile  | Rubber/Plastics &       |
| Date    |     | ubber/Plastics |          | Textile                 |
+---------+-----+----------------+----------+-------------------------+
| N44977  | 7   | 34.79          | 13.78    | 48.57                   |
|         |     |                |          |                         |
| 4       |     |                |          |                         |
| /23/986 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+
| N4497   | 9   | 34.26          | 14.28    | 48.54                   |
|         |     |                |          |                         |
| 4/23/98 |     |                |          |                         |
+---------+-----+----------------+----------+-------------------------+

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
>
> Commercial Rulings Division