United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 956753 - HQ 958464 > HQ 957376

Previous Ruling Next Ruling
HQ 957376




August 13, 1996

CLA-2 RR:TC:TE 957376 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.25; 6404.19.35

Port Director
U.S. Customs Service
P.O. Box 025280
6601 NW 25th Street
Miami, FL 33102-5280

RE: Protest and application for further review no. 5201-94-100318; women's footwear; weight breakdown; heading 6404

Dear Sir:

This is a decision on application for further review of protest no. 5201-94-100318, dated May 31, 1994, by Unisa America, Inc., against the former District Director's decision concerning the classification of four different styles of women's shoes under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles at issue consist of four styles of women's espadrille shoes. The styles are as follows: Orchard, Sharp, June and Blossom. All of these styles contain a textile upper, a jute midsole, and an outersole exterior composed of rubber or a combination of jute and rubber.

The samples were analyzed by the Savannah Customs Laboratory and it was determined that all four styles of shoes contained over 10% by weight of rubber/plastic. Based on the laboratory reports, the entries in this protests were liquidated under subheading 6404.19.35, HTSUS, which provides for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials (con.):Footwear with outer soles of rubber or plastics (con.): Other (con.): 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 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." The applicable rate of duty for this provision is 35% ad valorem.

It is the protestant's position that the shoes should be classified in subheading 6404.19.25, HTSUS, which provides for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials (con.): Footwear with outer soles of rubber or plastics (con.): Other (con.): 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 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: Less than 10 percent by weight of rubber or plastics: With uppers of vegetable fibers."
The applicable rate of duty for this provision is 7.5% ad valorem.

The protestant bases its position on independent laboratory analysis, facts relevant to the manufacture and constituent materials of the merchandise and the fact that the footwear samples the Customs laboratory analyzed were prototypes and not actual samples of commercial merchandise.

Commercial samples of the four styles of shoes were subsequently sent to the Customs Laboratory for analysis of their material composition. The laboratory reports for styles Blossom and June reflect that the amount of rubber or plastics is under 10% by weight. The laboratory reports for styles Sharp and Orchard reflect that the amount of rubber or plastics materials in each style is over 10% by weight.

ISSUE:

Whether or not the subject footwear contains over 10% by weight of rubber/plastics?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUS) is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

It is the protestant's position that the subject styles of shoes are classifiable in subheading 6404.19.25, HTSUS. Counsel makes the following arguments in support of protestant's position:

1. Independent laboratory analysis supports the conclusion that all the subject styles contain less than 10% by weight rubber/plastics. The accuracy of these laboratory reports is verified by its consistency with Unisa's specifications for commercial production of the shoes. Specifications for all styles required a rubber/plastic content below 10% by weight of the footwear. All styles were manufactured strictly in accordance with specifications. Conformity with specifications was assured as a result of the process of manufacture and quality control.

2. The Customs laboratory analysis, on which the liquidations were based, were of prototypes of Orchard, June and Blossom. The prototypes bore a close outward similarity to the styles as manufactured in commercial quantities but differed substantially in the nature and weight of component materials. Therefore, the results of the Customs laboratory analysis of the prototypes are not indicative of the nature or weight of the component materials of these styles manufactured commercially and covered by the entries under protest.

Moreover, according to counsel, the claimed rubber/plastics content can be readily verified by the process of weighing the separate components of the footwear, as the independent lab did. The only rubber in the shoes is the rubber on the outer soles. The soles were mass produced by means of attachment of the rubber to the jute midsole in a heavy aluminum mold which could only accommodate a given amount of rubber. The rubber itself was die cut from sheets and the dimensions of the die could not vary. Weighing the different materials before combination will remove a degree of inaccuracy introduced by the process of disassembly itself.

CLASSIFICATION OF STYLES BLOSSOM AND JUNE

The original Customs laboratory analysis for these styles was based on prototypes as indicated by the manufacturer of the shoes and the materials present in them. For example, the laboratory analysis report reflects the presence of cork. According to the protestant, the shoes produced by the commercial manufacturer do not have cork as one of their component materials. However, the prototypes did. Therefore, the samples examined by Customs were not representative of production by the commercial manufacturer.

Subsequently, the Customs laboratory retested commercial samples of Blossom and June. The laboratory analysis reflects that both styles are composed of less than 10% by weight of rubber/plastics materials. Therefore, these styles are classifiable in subheading 6404.19.25, HTSUS.

CLASSIFICATION OF STYLES ORCHARD AND SHARP

In subsequent retests of commercial samples of styles Orchard and Sharp, the laboratory reports reflect that the rubber/plastics content was consistently over 10%. However, the protestant's independent laboratory reports reflect that the weight of rubber/plastics in these two styles is less than 10%. Therefore, the issue that remains is the correct classification of these two styles of shoes.

The method used by the Customs laboratory to measure the rubber in the subject shoes was physical separation of the shoe's component materials. Counsel for protestant claims that this physical separation introduced a margin of error, particularly in connection with the types of shoes involved in this case. These shoes are made in part by combining rubber, which forms all or a portion of the outer sole to a jute fiber midsole. In the process of joining the rubber to the jute, some of the rubber necessarily mixes with the jute fibers and it is impossible to fully separate the two by simple physical means. If the weight of a small amount of jute fiber was included in the weight of the rubber, the weight of the rubber would be increased beyond its actual weight.

Further, counsel contends that the Customs laboratory techniques do not call for testing under standard conditions of temperature and humidity. These conditions are not noted on the Customs laboratory reports or the laboratory analysts notes. However, counsel argues that standard temperature and humidity are required and are noted on the independent laboratory reports. Variations of temperature and humidity result in differences in the absorption of moisture, particularly by textile components, and will result in variations in component weights and their weights relative to each other. While such factors might not be significant where the weight of the rubber/plastic is well above or below the under 10% maximum, they must be eliminated when this percentage is approached, as is the case here.

Thus, counsel argues that the variables tolerated by the Customs laboratory in the course of testing these shoe styles resulted in test results with high margins of error. These margins of error yielded such degrees of variations that Custom's laboratory conclusions should be invalidated. At most, counsel states that, it could be argued that the Customs laboratory analyses constituted some evidence as to percentage composition of the shoes. However, this evidence is fully rebutted by specifications of the importer and independent laboratory analysis.

It 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. United States v. Gage Bros., 1 Ct. Cust. Appls. 439, T.D. 31503; United States v. Lozano, Son & Co., 6 Ct. Cust. Appls. 281, T.D. 35506; Draper & Co., Inc. v. United States, 28 Cust. Ct. 136, C.D. 1400. However, this presumption may be rebutted by showing that such methods or results were erroneous. Sears, Roebuck & Co. v. United States, 3 Ct. Cust. Appls. 447, T.D. 33035; Gertzen & Co. v. United States, 12 Ct. Cust. Appls. 499, T.D. 40697; Pastene & Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677. Furthermore, the presumption does not have evidentiary value and may not be weighed against relevant and material proof offered by plaintiffs. If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence. Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965).

Counsel cites Aluminum Company of America v. United States, 477 Fed. 2nd 1396, 60 CCPA 148 (1973) (hereinafter referred to as Alcoa), in support of protestant's position that a prima facie case has been made out and that the weight of the evidence supports classification of the shoes in subheading 6404.19.20, HTSUS. In the Alcoa case, the Customs laboratory analysis yielded results as to material content which warranted one classification, while the importer's independent laboratory analysis yielded results as to material content which warranted a different classification. The Customs Court found that the appellant had not brought out evidence to enable it to determine whether the omissions or deviations of the Customs chemists amounted to critical departures from the Customs method. Therefore, the Court held that the presumption of correctness attaching to Customs classification had not been overcome. The Appellate Court reversed. It held that once the importer had submitted evidence sufficient to establish a prima facie case, the presumption in favor of Customs classification is destroyed and the government has the burden of going forward with the evidence. The issue then came down to weighing the evidence. The Court held that the weight of the evidence was in favor of the importer's claimed classification. It based this finding on a number of factors including the following ones:

1) specifications for the product calling for a specific content and the fact that the material was a stable material that would not change in that respect during importation;

2) independent laboratory confirmation of the importer's claim: five in number for each shipment, in three different labs by two or three different methods by three different operators.

While we grant that plaintiff's evidence is sufficient to establish a prima facie case and Customs is required to go forward with proof, we find that certain facts in the present case distinquish it from the Alcoa case and therefore, do not necessarily warrant a finding that the weight of the evidence is in favor of the importer's claimed classification. First, in the Alcoa case, the importer had several samples which he was able to establish were taken from the shipment as it arrived in the U.S. at the same time the samples he sent to Customs for analysis. He had those samples analyzed by both his own chemists and two independent labs using the published Customs Lab Method, which was considered reliable by both sides. All their results were provided to the Court and they were consistent. Unlike the plaintiff in Alcoa, the protestant here does not have any laboratory analysis of samples taken from any shipment. The analysis was of the shoes' components before they were even assembled and these unassembled components have no confirmed connection to any given shipment. We note that your port consistenly received Customs laboratory reports, which determined that the Sharp and Orchard styles made by the commercial manufacturer were over 10% by weight of rubber/plastic, for commercial shipments in roughly the time frame of the protested entries, plus or minus four months. In fact, regarding style Sharp made by the commercial manufacturer, your port did supply a laboratory report that determined that the shoe was over 10% rubber/plastic based on a sample from one of the protested entries.

Moreover, in the Alcoa case, the Court looked to the fact that the Customs chemists indicated that they omitted certain steps in the Customs Method at issue therein and deviated form others. In the instant case, the Customs laboratory did not fail to follow its own procedures or make any errors in performing the analysis relied on in classifying the articles at issue. Upon examination of the cards and worksheets, the analyses by the Customs laboratory of the subject styles of shoes were performed in accordance with U.S. Customs Laboratory Method for Footwear, general procedure for weight percent of footwear components. According to this method, footwear is physically disassembled into the individual components. When necessary, solvents may be used to assist in the physical separation of footwear into component materials. All weighing is done in the standard temperature atmosphere for testing, as specified in the Explanatory Notes, Section XI (IV)-this is the standard operating procedure for all textile and footwear testing performed in the Customs lab. See U.S. Customs Laboratory Method for Footwear, page 8, A6. Since use of the temperature and humidity conditions is standard laboratory practice, the notation of these on the worksheets is not required, unless it varies from the standard condition. As our review found that the US Custom Footwear Method was followed for all referenced samples, it is therefore unlikely that they were variations in temperature and humidity that led to high margins of error.

Furthermore, we note that the testing done by the independent laboratory did not use the same method as used by the Customs laboratory. The protestant has relied on an unproven method, weighing components prior to assembly, which is not followed by the Customs lab, which, of necessity dissembles footwear after assembly and shipment. Although it is reasonable to assume that there would be a rough correlation between the weight of the unassembled components and the weights of the materials in the finished shoe as it arrived in the U.S., which is the actual issue, there are valid reasons as to why there could be differences. For example, trimming is a normal operation in footwear construction and either the heat and pressure used in attaching the soling material or the international voyage is likely to change the material content of the natural jute midsole. Since jute a natural product which will clearly gain and lose some moisture over time, once it is assembled and shipped, there could be weight changes as a result of this. Furthermore, counsel has not presented evidence to show that the method the independent laboratory relied on produces results that are the same or close to the ones that would be achieved by a correct breakdown of an import.

After a review of the evidence, it is our position that, while Counsel has made out a prima facie case, the weight of the evidence is in favor of the Customs classification. As stated above, the Customs laboratory followed its procedures in analyzing the subject shoes. While counsel claims that "physical separation technique introduces a margin of error", the physical separation of footwear for percent component composition by weight is the most accurate means of making that determination. Customs analysts routinely perform this type of analysis and are careful to ensure that fibers are not left attached to the rubber portion and vice versa. Moreover, the method used by the protestant is not the one followed by Customs and does not take into account the factors discussed in the above paragraph that may effect the weight of the rubber component. Finally, while it is true that the Customs laboratory reports for these shoe styles reflect differing percentages for the rubber component, each report reflects that the rubber percentage is clearly over 10%. Thus, we find that the weight of the evidence is in favor of Custom's classification and these two styles of shoes remain classified in subheading 6404.19.35, HTSUS.

HOLDING:

Styles Blossom and June are correctly classified in subheading 6404.19.25, HTSUS.

Styles Orchard and Sharp are correctly classified in subheading 6404.19.35, HTSUS.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant 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 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 the ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

Previous Ruling Next Ruling

See also: