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HQ 965422





April 29, 2002

CLA-2-42: RR: CR: TE 965422 JFS

Category: CLASSIFICATION

TARIFF NO.: 6404.19.3560

Port Director
U.S. Customs Service
6601 N.W. 25th Street
Miami, Florida 33102

RE: Decision on Application for Further Review of Protest No. 5201-01-100262; Classification of Ladies Footwear; Sufficiency of Protest.

Dear Sir:

This is a decision on an application for further review (AFR) of a protest timely filed on April 24, 2001, by Andrew M. Parish, P.A., on behalf of Fred Lurie Associates, Inc. The Protest concerns the classification and liquidation of one entry of women’s footwear entered on November 17, 2000.

You classified five styles of footwear under subheading 6404.19.3560, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in pertinent part, for: Footwear with outer soles of rubber or plastics, and uppers of textile, other, of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear having a foxing or foxing-like band, other, other, for women. The general column one duty rate is 37.5 percent ad valorem.

The protestant claims that these styles of footwear are classified under subheading 6402.99.1865, HTSUSA, which provides for: Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather): Other: Other, Other: Other. The general column one duty rate is 6 percent ad valorem.

Nine styles of shoes were entered under the entry at issue. Samples of all nine styles were sent to a Customs laboratory for examination. The laboratory determined that five of the styles, Dina, Cynthia, 2083, 2098-2 and LD-01B, have outer soles of rubber or plastic and that the exterior surface of the uppers are of textile material. The laboratory further found that the samples contain more than 10 percent by weight of rubber or plastics. These five styles were rate advanced and are the styles that are the subject of this protest. The protestant provided no evidence to contest these findings by the Customs laboratory.

ISSUE:

Whether the protestant provided sufficient evidence to overcome the classification determination made by Customs.

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 protestant argues that the merchandise at issue was properly classified as entered and cites to Port Decision (PD) B89645, dated October 15, 1999; PD B80341, dated January 10, 1997; PD B85756, dated June 10, 1997; PD B87224, dated (indecipherable0 1997; NY C87619, dated June 3, 1998; NY C89749, dated July 13, 1998; and NY E89151, dated November 11, 1999. The protestant states that:

All of these rulings hold that women’s shoes similar to those in issue should be classified under item number 6402.90.1865, HTSUSA, [sic] as entered. The importer submits that the entry contains certain styles held to the foot with buckles and/or fasteners which further substantiates the entered classification.

Other than the fact that the cited rulings classified women’s footwear in subheading 6402.99.1865, HTSUSA, it is not clear how they are relevant to the case at hand. The extent of the description of the footwear provided in these rulings is minimal. The rulings basically describe the footwear as women’s footwear with plastic uppers. The rulings do not appear to involve the same importer or the same style of shoes that are at issue in this case. Nor does the protestant demonstrate how the footwear classified in the cited rulings are related, if at all, to the instant footwear. In sum, the cited rulings provide no support for the protestant’s argument.

The protestant also states that:

The reclassification of these goods would represent a change of a uniform and established practice in light of the numerous cited Customs rulings requiring liquidation as entered, as well as the fact that such or similar goods have been imported by the protestant, as well as its competitors, for at least five (5) years, and have been consistently liquidated by those ports under the entered classification, and that it has relied on the previous more favorable classification, which again are supported by the cited rulings.

Once again, contrary to the protestant’s assertions, the cited rulings do not provide any support for the protestant’s argument that a uniform practice has been established. Nor does the protestant provide any evidence to support the allegation that “such or similar” goods have been imported by the protestant under subheading 6402.99.1865, HTSUSA, and liquidated as entered, for at least five years.

Moreover, the decision to rate advance the footwear at issue was based upon Customs laboratory reports. Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa). Absent a conclusive showing that the method for determining water resistance is in error, or that Customs' laboratory results are erroneous, there is a presumption that the results obtained by a Customs laboratory are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. The protestant has provided no evidence to demonstrate that the laboratory results are erroneous or that the methods used were in error.

The protestant submits that the protest qualifies for further review pursuant to 19 CFR 174.24 because “the matter involves questions of law or fact, which have not been ruled on by the Commissioner of Customs or his designee.” While the protestant makes this assertion, the protestant has failed to inform Customs of the questions of law or fact that have yet to be ruled upon by Customs.

Finally, the protestant claims that the AFR meets the criteria set forth in 19 CFR 172.26. Given that there is no section 172.26, Customs will assume that the protestant intended to cite to 19 CFR 174.26. The protestant claims that the protest meets the criteria set forth in section 174.26 because (1) there is an “obvious lack of uniformity as to how various products are being treated” and (2) an established and uniform practice existed. The protestant then states that these issues have not been addressed in any Customs ruling or court decision. No evidence was provided to support any of these claims.

An application for further review shall contain inter alia:

A statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in § 174.24 which justifies further review. A showing of facts that support the allegation of a criterion set forth in § 174.24 (c) will constitute a ground for the granting of further review in circumstances where the applicant's inability to affirmatively make the allegations described in paragraph (b)(2) of this section would otherwise result in its denial.

19 CFR 174.25 (b)(3). Absent a statement of facts or additional legal arguments upon which the protestant relied to justify further review, the AFR fails to meet the requirements of section 174.25.

Given the complete lack of evidence combined with the failure to articulate any legal arguments to support the protestant’s allegations, the protest should be DENIED in full. In the future, applications such as this one, which fail to justify the request for further review, should not be approved for forwarding to Headquarters for action.

HOLDING:

The Protest is DENIED. Styles Dina, Cynthia, 2083, 2098-2 and LD-01B, are classified in 6404.19.3560, HTSUSA, which provides for: as footwear with outer soles of rubber, plastics, leather, or composition leather and uppers of textile materials, footwear of the slip-on type, that is held to the foot without the use of buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other, Other: for women. The general column one duty rate is 37.5 percent ad valorem.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

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,

John Durant, Director

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