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HQ 958590




October 26, 1999

CLA-2 RR:CR:TE 958590 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.19.9030; 6402.19.1020; 9902.64.02

Mr. William Knoblauzh
Area Director
U.S. Customs Service
330 Second Avenue South
Suite 560
Minneapolis, MN 55401

RE: Protest Number 3501-93-100425; footwear; roller skates

Dear Mr. Knoblauzh:

This is in reply to the Customs Protest and Summons Information Sheet dated September 9, 1993, regarding the Application for Further Review of Protest (AFR) 3501-93-100425, which you forwarded to our office for review. Meyer Customs Brokers filed the AFR covering seven entries, on behalf of Rollerblade, Inc., against the classification of in-line skate boot shells with removable textile liners. The law firm of Powell, Goldstein, Frazer & Murphy filed a Memorandum of Fact and Law in Support of Protest.

We note that the instant AFR is a lead protest. According to counsel, the following protests on the same or similar issues concerning Rollerblade, Inc., have been suspended pending this decision on the lead protest:

Protests suspended at the Port of Minneapolis Protests suspended at the Port of Chicago 3501-93-100449 3901-93-102360
3501-93-100451
3501-93-100524
3501-93-100525
3501-93-100537
3501-94-100086
3501-94-100089
3501-94-100141
3501-94-100246

Protests suspended at the Port of Minneapolis 3501-94-100270
3501-94-100297
3501-94-100414
*two additional unidentified protests covered by entry number XXX-XXXXXXX-X dated April 12, 1993, and entry number XXX-XXXXXXX-X dated August 12, 1992.

Customs liquidated all of the entries in the subject protest on June 11, 1993, under subheading 6402.19.9030 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in part, for sports footwear with outer soles and uppers of rubber or plastics, not having uppers of which over 90 percent of the external surface area is rubber or plastics.

Thereafter, the protestant timely filed this action on September 9, 1993.

FACTS:

The merchandise under protest consists of four models of polyurethane shells used solely in the manufacture of in-line roller skates. The shells consist of a molded polyurethane upper and a removable, padded textile and/or removable vinyl liner. The boot frames have plastic uppers and bottoms and extend above the wearers ankles. They are designed to be worn with textile booties which are exposed through holes in the plastic boot frames and above the top of the shaft. The first model is the Special Make Up (SMU). It has a black plastic shell with 12 eyelets and one plastic rachet-and-buckle type strap. It also has a black liner with a purple plastic tongue. The Mondoblade has a black plastic shell with 16 eyelets and no closure strap, and a white liner with a white plastic tongue. The Aeroblade consists of a metallic-looking gray plastic shell with no eyelets and three purple rachet-and-buckle type straps and a dark gray liner. The last model, Coolblade, also has a metallic-looking gray plastic shell with no eyelets and three rachet-and-buckle type straps which are green, red and yellow. It also has a dark gray liner.

In addition to the four models at issue in the lead protest, counsel states that the suspended protests cover the following models of boot shells used solely in the manufacture of in-line roller skates:

Bravoblade; Geoblade; Grand Prix (SMU); Lightening TRS; Macroblade; Metroblade; Microblade; Powerblade; Zetrablade; Blade Runner; Slalomblade

Based on a case pending before the Court of International Trade (CIT) at the time the instant protest was filed, Rollerblade Inc. v. United States, Docket Number 91-12-00981, 112 F.3d 481 (CIT 1997), Customs suspended action on the protest pending the court=s decision. Initially, the protestant=s primary argument was that the merchandise was classifiable as Aroller skates and
parts and accessories thereof@ under subheading 9506.70.2000, HTSUS, and not Afootwear@ of any kind. In Rollerblade, the court addressed whether the footwear provisions under the Tariff Schedule of the United States (TSUS) and the HTSUSA were broad enough to encompass roller skate boots imported without wheels. For purposes of this ruling, we will only discuss the court=s decision as it pertains to the HTSUSA.

In Rollerblade, the merchandise consisted of rigid, molded plastic (polyurethane) boots which included a removable, padded vinyl liner. The bottom of each boot was molded to accommodate the permanent attachment of wheel frames and wheels. The court rejected plaintiff-appellee=s claim that the boots were classifiable as roller skates and parts thereof in subheading 9506.70.20, HTSUSA, determining that Afootwear@ under the HTSUSA encompasses shoes of the type used for attachment to skates, while the Aroller skate parts@ provision covers plates, blades and wheels. In light of the recent court decision, the protestant abandoned its claim that the skate boots are classifiable in chapter 95, HTSUSA, and now raises the following grounds on which the pending protests can be approved:

1. All but one of the entries were made BEFORE December 31, 1992, and therefore qualify for duty-free entry under heading 9902.64.02, which suspended the duty on Askating boots used in the manufacture of in-line roller skates@ (provided for under subheading 6402.19.10) through December 31, 1992.

2. All of the entries covered by protest 3501-93-100425 were unlawfully reliquidated by Customs Service well beyond 90 days after the original liquidations.

3. Minneapolis Customs now concedes that most of the models have external surface areas of more than 90 percent rubber or plastics.

A member of my staff met with counsel on August 25, 1994, and again on September 18, 1998, to discuss the issues in this case. At the last meeting we afforded counsel an opportunity to submit additional information to support the AFR, which we received on April 1, 1999.

ISSUES:

1. Do the boot frames/shells qualify for duty-free entry under subheading 9902.64.02?

2. Were the entries covered by protest 3501-93-100425 Aunlawfully reliquidated@?

3. Is the external surface area of the uppers of the imported polyurethane shells more than 90 percent rubber or plastics?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order.

Customs liquidated the four styles in this protest under subheading 6402.19.9030, of the 1993 HTSUSA, which provides, in part, for other footwear with outer soles and uppers of rubber or plastics.

Counsel argues the skate boots at issue are classifiable in subheading 6402.19.1020, HTSUSA, as other sports footwear having uppers of which are over 90 percent of the external surface area is rubber or plastics.

Note 3(a), Chapter 64, states that the terms Arubber@ and Aplastics@ include Awoven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye.

Note 4(a), Chapter 64, reads:

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 record contains a Customs laboratory report for five of the samples which reflect the following findings:

Model Name Rubber or Plastics, By Area
SMU 96 %
Mondoblade 91 %

Geoblade 91%
Aero-Blade 87%
Cool-Blade 89%

Based on these laboratory analyses,we agree with the protestant that the SMU, Mondoblade and Geoblade have an external surface area of the upper (ESAU) which is over 90 percent rubber or plastics and that those models of skate boots are classifiable in subheading 6402.19.1020, as claimed. Additionally, your office has advised us that the models Lightening TRS, Macroblade, Metroblade, Microblade, Zetrablade and Slalomblade on the suspended protests have been examined and also found to be classifiable in subheading 6402.19.1020. However, your records do not show invoices for the Bravoblade, Bladerunner and Grand Prix and, therefore, we will not address those models.

Furthermore, the protestant concedes that the external surface area of the upper (ESAU) of the Powerblade boot is Awell below@ 90 percent rubber or plastics. Thus, we only need address classification of the Aeroblade and Coolblade models.

The Aeroblade and Coolblade models do not have eyelet stays. Counsel states that those models have liners that protrude above the cuff of the shell and portions of the liner that are visible through ventilation apertures. Since the liner is covered with a vinyl material, counsel argues that it must be included in calculating the percentage of the external surface area of the uppers consisting of rubber or plastics.

Finally, counsel contends that the exposed portion of the tongue must also be included in calculating the percentage of the external surface area of the uppers consisting of rubber or plastics. On the Aeroblade and Coolblade models, counsel claims that the tongue is actually a continuous part of the plastic molded shell and cannot be distinguished between the tongue portion of the polyurathane shells from the remainder of the upper.

In order to assist importers in better understanding classification requirements for footwear, Customs published AFootwear Definitions@ in T.D. 93-88, 27 Cust. B. & Dec. No. 46, on October 25, 1995. The definitions serve merely as guidelines and are not to be construed as Customs rulings. The definition of AExternal Surface@ reads:

1. The Aexternal surface@ of the upper is, in general, the outside surface of what you see covering the foot (and leg, if applicable) when the shoe is worn.

A. It does not include:

1. Accessories and reinforcements such as ankle patches, edging, ornamentation, (i.e., tassels, pompons, or braids), buckles, tabs, eyelet stays, slide fasteners, or similar attachments. Other examples include the leather pieces sewn on the top of the lower part of the upper in basketball shoes, and Afilled-in@ embroidery.

2. The upper=s lining, which faces the foot.

3. The sock lining that the foot rests on.

4. The tongue.

B. It does include:

1. Small holes in materials. The holes count as if they were filled with the material which surround them.

4. Underlays, which are the outer side of lining that can be seen through large holes in the uppers. Any hole bigger than a collar button is surely Alarge@; one smaller than a pin head is surely not Alarge@; In between, it depends on the materials, shape spacing etc.

In Headquarters Ruling Letter (HQ) 955541, dated May 18, 1994, Customs addressed the classification of a man=s basketball shoe with a removable liner. Although the shoe did not qualify for classification in subheading 6402.91.40, because it had a foxing-like band, the ruling is relevant in that we stated that:

When the Aframe@ and the liner are imported together, the external surface area of the upper of the complete shoe include all of the textile areas where the textile liner is the only material covering the foot. Again, the plastic oval, which we consider to be the partial equivalent of a tongue is not counted as ESAU or as accessories or reinforcements.

In HQ 955705, dated March 1, 1994, Customs classified a man=s high top, lace-up athletic shoe Aframe@ with a unit-molded plastic sole and a plastic upper imported with removable textile bootie-like liners with applied textile soles in subheading 6402.91.70, because the textile portion comprised at least 10 percent of the external surface area of the upper. The external surface area included a narrow, textile topline trim on the shoe, and textile where the bootie shows above the topline and the tongue, and where it shows through the three cutouts in the lateral side of the upper.

It is Customs position that the tongue or flap of footwear which extends upward from the top line of the shoe and is visible and tactile is included in the calculation of the exterior surface of the upper. T.D. 84-59, 18 Cust. B. & Dec. 166 (January 11, 1984). It has consistently been Customs position that the exterior surface area of the upper is whatever is visible and tactile on the surface excepting such things as buttons, strips and other loosely attached appurtenances. In those cases where the tongue was held not to be part of the exterior surface area of the upper, it was on a plane lower than a portion of the upper and was partially or wholly covered by laces and eyelet facings or strays. Id.

In this case, we agree with counsel that the portions of the liner which are exposed through the holes in the boot frame and above the shaft and the exposed portion of the tongue which extends upward from the top line and is visible and tactile are included in the ESAU. With this in mind, a Customs laboratory examined both the Aeroblade and Coolblade models and determined that the textile portions accounted for more than 10 percent of the ESAU.

Customs reviewed the laboratory reports and methodology used to determine the ESAU and concluded that Customs methodology and test results were Aacceptable.@ The report reads, in pertinent part as follows:

The subject footwear is constructed chiefly of a hard molded plastic exterior with a textile liner. The difficulty in the analysis of this type of footwear is that the molded plastic cannot be made to lie flat in two pieces for analysis, which is the conventional way to prepare the sample in order to calculate the ESAU according to the U.S. Customs Laboratory Method for Footwear. According to your cover memorandum, the protestant=s counsel has suggested that the Customs laboratory measurement was Ainaccurate due to improper methodology,@ and a copy of the methodology used by the protestant=s private testing service was submitted for our review. The methodology involves the use of a AConTact Paper technique@ for determining ESAU.

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 are 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.

In Universal Electronics, Inc. v. United States, 113 F. 3d 488 (Fed Cir. 1997), which reiterates the holding in Goodman Manufacturing L.P. v. United States, 69 F. 3d 505 (Fed Cir. 1995) that the presumption of correctness carriers no force as to questions of law, the court stated that the presumption of correctness is:

[A] procedural device that is designed to allocate, between the two litigants to a lawsuit the burden of producing evidence in sufficient quantity. Specifically, the importer must produce evidence (burden of production portion of the burden of proof) that demonstrates by a preponderance (the burden of persuasion portion of the burden of proof) that Customs classification decision is incorrect. The presumption of correctness certainly carries force on any factual components of a classification decision such as whether the subject imports fall within the scope of the tariff provision, because facts must be proven via evidence. (Emphasis in original).

Even if we assume, arguendo, that the independent laboratory reports rebut the presumption of correctness of the Customs laboratory reports, the protestant did not prove by a preponderance of the evidence that the methods used by Customs or the results obtained in its reports were erroneous. The protestant failed to reference any errors made by the Customs laboratory or to prove that the methods used or results obtained by the independent laboratory were more reliable or accurate. Accordingly, the protest should be denied for the Aeroblade, Coolblade and, as conceded by counsel, the Powerblade.

Counsel also claims that the Geoblade and Metroblade are not footwear at all since the shell frame assembly is not a separate part that gets attached to the boot after importation. Counsel argues that these styles are classifiable as skates in chapter 95, HTSUSA. We note, however, that the Ashell frame assemblies@ are imported without wheels. In Rollerblade, supra, the court addressed the distinction between roller skates and roller skate parts, stating:

Congress set forth a relatively simple and straight-forward classification system for roller skates and roller skate parts: a roller skate outfit may be comprised of top and bottom portions, where the top portion, regardless of the particular characteristics thereof, is called the boot (or the shoe) and the bottom portion is called the skate. The Summaries also make it clear that Aparts of roller skates@ were meant to cover the parts of the skates (such as plates, blades, and wheels), and not the boot. Thus, when a boot (without attached skates) intended for use in the manufacture of the roller skate outfit is imported, it is classified as footwear. However, when the boot is attached to the skate, the entire roller skate outfit, including the boot, is classified as a roller skate. Emphasis added.

The Geoblade and Metroblade models you sent us to examine have a boot with attached plate, which as the court noted, is only a Apart@ of the bottom roller skate outfit. Without the wheels, the bottom of the Geoblade and Metroblade models are not roller skates of chapter 95.

Next, we will address counsel=s claim that the boots qualify for duty-free entry under subheading 9902.64.02, HTSUSA. At the time of entry in 1992, that provision covered ASkating boots for use in the manufacture of in-line roller skates (provided for in subheading 6402.19.10). Articles qualifying for that provision were duty free.

The court in Rollerblade was sympathetic to the importer=s situation, noting that the imposition of tariffs on the in-line roller skate boots while not imposing tariffs on the finished in-line roller skates puts companies like Rollerblade who import the boots and assemble the outfits in the United States at a competitive disadvantage referred to as tariff inversion. Thus, the court noted that the Committee approved a temporary suspension of the duty on boots without skates attached, provided the boots are actually used in the manufacture of roller skates and are entered within the effective dates of the temporary suspension.

We reviewed the legislative history for subheading 9902.64.02, and agree with you that the temporary suspension of duty was intended to cover the merchandise imported by Rollerblade, Inc. Accordingly, the SMU, Mondoblade, Geoblade, Lightening TRS, Macroblade, Metroblade, Microblade, Zetrablade and Slalomblade models which are classifiable in subheading 6402.19.10, HTSUSA, are eligible for duty-free treatment under subheading 9902.64.02, HTSUSA.

Finally, counsel claims that some of the entries in question were Aunlawfully reliquidated.@ The response to this issue is set forth fully in HQ 956588, which is another ruling on a related protest. That ruling and this decision were mailed to you simultaneously.

HOLDING:

The protest should be GRANTED for the SMU, Mondoblade, Geoblade, Lightening TRS, Macroblade, Metroblade, Microblade, Zetrablade and Slalomblade models. They are classifiable in subheading 6402.19.1020, HTSUSA, and are eligible for duty-free treatment under subheading 9902.64.02, HTSUSA, if entered before December 31, 1992.

The protest should be DENIED for the Aeroblade and Coolblade models. They are classifiable in subheading 6402.19.9030, HTSUSA, which provides, in part, for other footwear with outer soles and uppers of rubber or plastics. They are dutiable at the general column one rate at 20 percent ad valorem.

In accordance with section 3A(11)(b) of Customs Directive Number 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be attached to the Customs Form 19, Notice of Action, and furnished 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 of the decision. Sixty days from the date of the decision (o n that date) the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and to 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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