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HQ 955313




February 7, 1995

CLA-2 CO:R:C:M 955313 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.30

District Director of Customs
300 S. Ferry Street
Room 1001
Terminal Island, CA 90731

RE: Protest 2704-93-102965; Footwear; Sandal, back-strap thong; Uppers, external surface area;
Accessories/Reinforcements

Dear District Director:

This is in response to Protest 2704-93-102965 concerning your action in classifying and assessing duty on a back-strap thong sandal manufactured in China. A sample was submitted for examination.

FACTS:

The shoe involved, identified as "Anne Michelle" style 44646Y, is a women's back-strap thong sandal with a plastic sole. The upper consists of a plastic V-strip on top of which is attached a thin textile strip. The textile strip has attached to it an assortment of plastic sequins, plastic imitation gem stones, and glass beads, all of which completely cover the V- strip portion of the thong. The portion of the thong that passes between the toes is plastic covered with a plastic tube. The back-strap is plastic and has a metal buckle.

The entry covering sandal style 44646Y was liquidated on June 18, 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 15, 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 and the metal buckle comprise 10% or more of the external surface area of the upper (ESAU) of the shoe 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 are 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 per- cent of the external surface area
(including any accessories or re- inforcements 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 in- clement 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 7-93-20808 dated May 24, 1993, covering a sample of style 44646Y (size 12) obtained from the entry involved, reveals that the ESAU of the upper, including A/R, was found to be 79.9% rubber or plastics, 18.0% glass, and 2.1% metal. Inasmuch as the ESAU of style 44646Y is not over 90% plastics, classification as claimed by the protestant under subheading 6402.99.15, HTSUS, is precluded.

However, counsel for the protestant claims Customs classification of style 44646Y is based on a serious error in its measurement of the ESAU. Specifically, a laboratory analysis performed by a private laboratory reveals that the ESAU of the upper was found to be 92.22% plastics, 6.58% glass, and 1.20% metal. Based on this analysis, the ESAU of style 44646Y is over 90% plastics, and classification under subheading 6402.99.15, HTSUS, would be appropriate.

We note that the private laboratory service used by the protestant analyzed a shoe size 2 whereas the Customs Laboratory analyzed a size 12 shoe. It has been our experience that shoes of different sizes commonly differ in the amount of each component comprising the ESAU. In addition, the Customs laboratory measured each gemstone individually, rather than assuming uniformity among all of the gemstones as was done by the private laboratory.

Although counsel for protestant claims "serious error" by Customs in the measurement of the ESAU of style 44646Y, there is no indication in the submission which refers to any problem or error with the Customs laboratory analysis. Our examination of the laboratory report and worksheets related to the subject sandal indicates that the analysis by the Customs laboratory was done in accordance with the U.S. Customs Service Laboratory Methods for Footwear. The analysis was performed twice by planimeter and confirmed by image analysis. Therefore, we find no error by the Customs laboratory in their measurement of the ESAU of style 44646Y.

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.

HOLDING:

Glass beads and metal comprise over 10% of the ESAU of style 44646Y.

Style 44646Y 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 Rulings 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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