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HQ 955719




February 7, 1995

CLA-2 CO:R:C:M 955719 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.30

District Director of Customs
300 S. Ferry Street
Room 10001
Terminal Island, CA 90731

RE: Protest 2704-93-103119; Footwear; Sandal, strippy, women's; Uppers, external surface area; HRL 083879

Dear District Director:

This is in response to Protest 2704-93-103119 concerning your action in classifying and assessing duty on a women's sandal produced in China. A sample was submitted for examination.

FACTS:

The shoe involved, identified as "Anne Michelle" style 86592, is a women's strippy sandal with a rubber/plastic sole. The upper consists solely of textile strips on top of which are attached plastic sequins, imitation gem stones, and glass beads. The ornaments completely cover the upper textile strips.

The entries covering style 86592 were liquidated on July 2, 1993, under subheading 6402.99.30, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, footwear with open toes or open heels. The applicable rate of duty for this provision is 37.5% ad valorem. The protest was timely filed on September 29, 1993.

Counsel for the protestant maintains that the footwear is properly classifiable under subheading 6402.99.15, HTSUS, 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, other. The applicable rate of duty for this provision is 6% ad valorem.

ISSUE:

Do the glass beads comprise 10% or more of the external surface area of the upper (ESAU) of the sandal including accessories or reinforcements (A/R)?

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 read, as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics:

Other footwear:
6402.99 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):

6402.99.15 Other . . . .

Other:
6402.99.30 Footwear with open toes or open heels; footwear 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 of subheading
6402.99.20 and except footwear having a foxing or a foxing- like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper . .

Note 3 to chapter 64, HTSUS, reads, as follows:

3. For the purposes of this chapter the expression "rubber or plastics" includes any textile material visibly coated (or covered) externally with one or both of those materials.

Note 4(a) to chapter 64, HTSUS, reads, as follows:

4. Subject to note 3 to this chapter:

(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments[.]

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). In part, EN (D) to chapter 64, HTSUS, provides that "[f}or the purposes of the classification of footwear in this Chapter, the constituent material of the uppers must also be taken into account . . . If the upper consists of two or more materials, classification is determined by the constituent material which has the greatest external surface area . . ."

Customs laboratory report 7-93-20846 dated June 7, 1993, covering style 86592 in size 10 reveals that the ESAU of the sandal, including A/R, was found to be composed of 89.2% rubber/ plastics and 10.8% glass beads. Inasmuch as the ESAU of style 86592 is not over 90% rubber/plastics, classification as claimed by the protestant under subheading 6402.99.15, HTSUS, is precluded.

However. counsel for protestant has submitted an analysis performed by an independent laboratory. That analysis shows that the ESAU of style 86592, was found to be 91.17% rubber/plastics and 8.83% glass. Based on this analysis, the ESAU of style 86592 is over 90% plastics, and classification under subheading 6402.99.15, HTSUS, would be appropriate.

Our examination of the laboratory worksheets related to the subject sandal indicates that the analysis by the Customs laboratory was performed in accordance with the U.S. Customs Service Laboratory Methods for Footwear. The footwear measurement was taken twice by planimeter and confirmed by image analysis. We find no error by the Customs laboratory in their measurement of the ESAU of style 86592. Further, utilizing image analysis, the Customs Laboratory also tested the sample of style 86592 which was analyzed by the independent laboratory, and found the average area of glass to be 13.3%.

It should be noted that the independent laboratory analyzed a different (smaller-approximately size 6 or 7) size shoe than that analyzed by the Customs laboratory (size 10). This factor alone can contribute to a significant difference in test results. It has been our experience that unless tight quality controls are maintained by the manufacturer, shoes of different sizes commonly differ in the amount of each component that comprises the ESAU.

With respect to the area measurement of the beads, we note that the independent laboratory used an "average area" of the beads in making the calculation. The average measurement was based on calculating an average measurement from 10 beads out of approximately 300. The Customs laboratory used the actual area of the beads rather than assuming uniformity. We also note that some of these sequins were found to cover the exterior surface of the beads in several places on the shoe analyzed by the independent laboratory.

In cases such as this, where an outside report is submitted that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820- 002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify products, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.

Although two entries were protested, only a sample from the entry dated April 27, 1993, was subjected to a laboratory analysis. Inasmuch as a laboratory analysis was not performed on a sample of the footwear from the entry dated May 3, 1993, counsel urges that the protest be allowed as to that entry.

Headquarters Ruling Letter (HRL) 083879 dated July 2, 1990, sets forth Customs position with respect to periodic testing of repeat shipments of the same merchandise. It states, in pertinent part, as follows:

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 will only periodically sample shipments of the same merchandise, in order to expedite the importing process.

It is our view that HRL 083879 controls here noting that the shipments in this instance, were close together, from the same manufacturer, same style number, same merchandise, etc. Consequently, it was not incumbent upon Customs to take a sample from the second shipment and perform another analysis.

HOLDING:

Glass beads comprise 10% or more of the ESAU of style 86592.

Style 86592 is dutiable at the rate of 37.5% ad valorem under subheading 6402.99.30, HTSUS.

The protest should be denied. 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 Ruling 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

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