Protest 1001-92-102744; Footwear; Slippers, ladies'; Weight breakdown; HRL 954184

HQ 957963 July 24, 1995 CLA-2 R:C:M 957963 DFC CATEGORY: Classification TARIFF NO.: 6404.20.40; 6404.20.60 Area Director of Customs JFK Airport Area Building 178 Jamaica, New York 11430 RE: Protest 1001-92-102744; Footwear; Slippers, ladies'; Weight breakdown; HRL 954184 Dear Sir: The following is our decision regarding the request for further review of Protest 1001-92-102744 dated April 8, 1992, concerning the tariff classification and appraisement of ladies' slippers manufactured in either the Philippines or Taiwan. FACTS: The footwear involved consists of three styles of ladies' slippers. Style 8888 is constructed of a velour upper (comprised of a 75% cotton/25% polyester blend, pigsuede outer sole, foam and spun poly batting cushioning and an elastic securing band. Style 6699 is constructed of a 2 ply nylon spandex upper (comprised of a 90% nylon/10% spandex blend), pigsuede outer sole, a 56% cotton/44% polyester inner sole, foam and spun poly batting cushioning and an elastic securing band. Style 2590 is constructed of a textile upper (consisting of either a 76% polyester/12% cotton/12% rayon blend or a 88% polyester/12% cotton blend), pigsuede outer sole, 100% polyester inner sole, foam and spun poly batting cushioning and an elastic securing band. The entries covering this merchandise were liquidated starting on January 17, 1992, at the rate of 37.5% ad valorem under subheading 6404.20.60, Harmonized Tariff Schedule of the United States (HTSUS). The protest was timely filed on April 15, 1992. The protestant asserts that all three styles are properly classifiable under subheading 6404.10.40, HTSUS, with duty at the rate of 10% ad valorem. See Headquarters Ruling Letter (HRL) 954184 dated November 12, 1993, regarding Protest 1001-92-102593 covering same styles of footwear. The appraisement issue raised by protestant was addressed in HRL 545625 dated November 4, 1994. ISSUE: Are these slippers less than 10% by weight of rubber or plastics or not over 50% by weight of textile materials and rubber or plastics? LAW AND ANALYSIS: Classification of goods under the HTSUS 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, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes. The competing provisions are as follows: 6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: * * * * 6404.20 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: * * * * 6404.20.40 valued over $2.50/pair. . . 10% 6404.20.60 Other. . . . . . . . . . . . . . .37.5% Samples of all three styles were analyzed by the Customs laboratory. The results of the analyses set forth in Customs Laboratory Report no. 2-92-11593-003 dated August 14, 1992, are as follows: Style 6699 consists by weight of 83% textile, 13.8% leather, and 3.2% rubber or plastics. Style 8888 consists by weight of 82.2% textile, 13.1% leather and 4.7% rubber or plastics. Style 2590 consists of 77% textile, 12.6% leather and 10.4% rubber or plastics. Noting that styles 6699 and 8888 are less than 10% by weight of rubber or plastics, it is our position that they are properly classifiable as claimed under subheading 6404.20.40, HTSUS. Classification under subheading 6404.20.60, HTSUS, is appropriate for style 2590, noting that it is over 10% by weight of rubber and plastics and over 50% by weight of textile materials and rubber or plastics. The protestant argues that due to the manufacturer's quality control procedures the quantity of rubber or plastics contained in the slippers would, in each instance, be less than 10% of the total weight of the article. Despite protestants claim, it appears unlikely that the manufacturer's quality control can guarantee that the weight of the plastics or rubber in the footwear involved will always contain significantly less than 10% by weight of rubber or plastics material. In this instance, according to the laboratory analyses, it did not. HOLDING: Styles 6699 and 8888 are dutiable at the rate of 10% ad valorem under subheading 6404.20.40, HTSUS. Style 2590 is dutiable at the rate of 37.5% ad valorem under subheading 6404.20.60, HTSUS. The protest should be allowed in part for styles 6699 and 8888 and denied in part for style 2590. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant, through counsel, 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director Commercial Rulings Division