HQ 083879: Decision on Application for Further Review of Protest No. 4501-8-000068.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 083879

                                    July 2, 1990



          CLA-2:CO:R:C:G  083879  SR

          CATEGORY:  Classification

          TARIFF NO.:  700.57

          District Director of Customs
          Suite 625
          7911 Forsythe Blvd.
          St. Louis, Missouri 63105

          RE: Decision on Application for Further Review
               of Protest No. 4501-8-000068.

          Dear Sir:

               This protest was filed against your decision in the
          liquidation on April 1, 1988, of entry number 84-107526-5, dated
          May, 8, 1984, covering a shipment of boots manufactured in Korea.

          FACTS:

               The merchandise involved is a man's eyelet bean boot,
          imported by Nelson Weather-Rite, Inc., importer's style number
          4095.  The importer filed an invoice which claimed the weight
          makeup of the boot to be 37 percent fiber, 60 percent rubber and
          3 percent plastic, and stated the classification to be under item
          700.35, TSUS.  Although no weight for leather was listed, the
          importer claimed that the boot upper has a surface area of over
          60 percent leather.  For this reason Customs rejected the invoice
          as incorrect, and bonded the importer for a corrected invoice.
          On October 24, 1984, the importer's broker submitted a new
          footwear invoice that indicated that the boots were 37 percent by
          weight of leather and possessed an exterior surface area of 60
          percent leather.  On June 1, 1984, Nelson Weather-Rite, Inc.
          entered another shipment of the same style boot, from the same
          manufacturer, with the same information as the resubmitted
          invoice dated October 24, 1984, of 37 percent by weight of
          leather with 60 percent of the exterior surface area of the upper
          of leather.


















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          ISSUE:

               Whether the boot at issue is classifiable under item 700.57,
          TSUS, or item 700.35, TSUS.

          LAW AND ANALYSIS:

               Item 700.57, TSUS, provides for footwear which is over 50
          percent by weight of rubber or plastics or over 50 percent by
          weight of fibers and rubber or plastics with at least 10 percent
          by weight being rubber or plastics, other footwear (except
          footwear having uppers of which over 50 percent of the exterior
          surface area is leather), other hunting boots, galoshes,
          rainwear, and other 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.

               The importer claims that the footwear at issue is over 50
          percent of leather and therefore classifiable under item 700.35,
          TSUS, which provides for footwear of leather, for men, youths,
          and boys.

               The sample from the shipment of June 1, 1984, that was
          tested by the Customs laboratory showed the exterior surface area
          of the upper of the boot to be 48.1 percent leather.  Because the
          upper of this boot had under 50 percent surface area of leather,
          it was classifiable under item 700.57, TSUS.  The shipment from
          which the boot was sampled was from the same manufacturer, the
          same style number, cost the same, and had the same information on
          the invoice as the boots in question.  The second shipment was
          imported a very short time after the first.  It appears safe to
          assume that the merchandise was the same for both shipments.
          Customs does not ordinarily sample every shipment of the same
          merchandise.  For most types of merchandise, Customs will only
          periodically sample shipments of the same merchandise, in order
          to expedite the importing process.

               The importer lists four court cases which he claims show
          that Customs must accept his invoice as correct.  United States
          v. Bloomingdale Bros. & Co., 10 Ct. Cust. Appls. 149, T.D. 38400
          (1920), held that the size of the sample that Customs tested was
          insufficient to determine the yarn count for the material at
          issue in the case.  The method of testing and the results of the



















                                         -3-

          test are not at issue in the current footwear case.  The court in
          Bloomingdale, stated:

               Not only is the invoice prima facie evidence of that which
               it declared, but unimpeached and not mistrusted or
               discredited, it is the evidence which determines the
               collector's action as to all imported merchandise which has
               not been examined.

          The invoice at issue is obviously false on its face and therefore
          is discredited as well as mistrusted.  Therefore, it cannot be
          relied on as prima facie evidence.

               None of the other three cases have facts that are relevant
          to the facts at issue.  In J.D. Smith Interocean, Inc. v. United
          States, 79 Cust. Ct. 99, T.D. 4719 (1977), samples were believed
          to be taken from the wrong compartment of the ship and were
          therefore not the same merchandise at all.  The sample tested in
          Hawley & Letzerich v. United States, 19 CCPA 47, T.D. 44893
          (1931), were also believed to be a different type of merchandise
          than the merchandise that was being imported.  In Albert F.
          Maurer Co. v. United States, 61 Cust. Ct. 181, C.D. 3559 (1968),
          the samples were also found to be taken from an insufficient
          quantity of material to properly determine the makeup of the
          goods.

               Neither the proper testing nor the identification of the
          footwear is at issue.  The boot that was tested was taken from a
          shipment from the same manufacturer, with the same model number
          and price, sold to the same importer, with the same information
          on the invoice, imported at approximately the same time.

          HOLDING:

               The sample of the men's eyelet bean boot style number 4095,
          was found by Customs to have an exterior surface area of the
          upper of 48.1 percent leather.  Therefore, the footwear at issue
          is classifiable under item 700.57, TSUS.

          The protest should be denied.  A copy of this decision should be
          attached to the Form 19 Notice of Action to satisfy the notice





















                                         -4-

          requirement of section 174.30(a), Customs Regulations.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division























































          6 cc A.D. New York Seaport
          1 cc Durant
          1 cc legal reference