                          Slip Op. 00-111

          UNITED STATES COURT OF INTERNATIONAL TRADE

             BEFORE:     RICHARD W. GOLDBERG, JUDGE


TARGET STORES, DIVISION OF HUDSON
CORPORATION,

                      Plaintiff,

                 v.                          Court No. 95-04-00376
                                             (Joined Issue)
UNITED STATES,
                      Defendant.



                         OPINION AND ORDER


     On January 12, 2000, plaintiff Target Stores moved for summary
judgment in the above-captioned matter. On March 25, 2000, plaintiff
moved the Court to amend its summary judgment motion. On March 31,
2000, defendant United States cross-moved for partial summary
judgment. On May 8, 2000, plaintiff responded to defendant’s cross-
motion for summary judgment and on May 30, 2000, defendant replied to
plaintiff’s opposition to its cross-motion.

     Upon close review of the submitted motion papers, the Court
finds a genuine factual dispute that is material to the resolution of
the action. In particular, plaintiff offers evidence, based on the
results of a scientific test, that the external surface area of the
uppers of certain entries1 are composed of over 90% plastic.
Defendant rebuts plaintiff’s claim by directing the Court to its own
scientific test that purportedly demonstrates that the external
surface area of the uppers of the subject entries are not composed of
over 90% plastic. Defendant further points out to the Court that its
classification, and all underlying factual determinations, are
accorded a presumption of correctness. See 28 U.S.C. §


    1
      The entries at issue include the following Neo Grande Sandals:
girls’ sizes 3, 4, 11, 12 and 13; boys’ sizes 1, 2, 11, 12, and 13;
youths’ sizes 3, 4, 5, and 6; men’s Greatland sizes 7, 8, 10, and
men’s Omega sizes 8, 11, 12.
2639(a)(1)(1994); United States v. New York Merchandise Co., 58
C.C.P.A. 53, 58, 435 F.2d 1315, 1318 (1970).

     Although the Court recognizes that the defendant’s
classification enjoys a presumption of correctness, the plaintiff has
presented substantial contrary facts “tending to prove...that the
original classification by the [defendant] was erroneous.”
Id.(emphasis added). Thus, there remains a genuine issue of fact to
be resolved at trial: whether the external surface area of the
uppers of the entries at issue are composed of over 90% plastic. See
e.g., Associated Metals and Minerals Corp. v. United States, 77 Cust.
Ct. 100, 426 F.Supp. 568 (1976). The issue of fact is material
because the composition of the external surface area of the uppers of
the entries at issue is dispositive to their classification under the
Harmonized Tariff Schedule of the United States (“HTSUS”).

     At trial, the parties will be required to demonstrate the
reliability of the conflicting evidence to determine the composition
of the external surface area of the uppers. See Libas Ltd., v.
United States, 193 F.3d 1361 (Fed. Cir. 1999). Therefore, summary
judgment is not appropriate for this issue.

     Summary judgment is appropriate, however, with respect to the
imported women’s shoes sizes 5, 6, 7, 8, and 9 that the defendant has
agreed should be reliquidated under subheading 6402.99.15, HTSUS,
with a duty rate of 6% ad valorem. Thus, partial summary judgment is
appropriate on this issue.

     Therefore, upon consideration of plaintiff’s motion for summary
judgment and brief in support thereof, defendant’s response; and
defendant’s cross-motion for partial summary judgment and brief in
support thereof, plaintiff’s response, and defendant’s reply; and
upon all other papers; and upon due deliberation, it is hereby

     ORDERED that partial summary judgment for plaintiff is GRANTED
with respect to the imported women’s shoes sizes 5, 6, 7, 8, and 9;

     ORDERED that the imported women’s shoes sizes 5, 6, 7, 8, and 9
be reliquidated under subheading 6402.19.15, HTSUS, with any refunds
payable by reason of this order paid with any interest provided by
law;

     ORDERED that partial summary judgment is DENIED for plaintiff
in all other respects;

     ORDERED that partial summary judgment is DENIED for defendant
is all respects; and it is further
     ORDERED that plaintiff and defendant confer and jointly submit
an amended scheduling order within twenty (20) days of the date of
this Order.


    SO ORDERED.


                                       JUDGE

Date:    August __, 2000
         New York, New York
