CLA-2 CO:R:C:M 957282 DFC
Area Director of Customs
J.F.K. Airport
Building 178
Jamaica, New York 11430
RE: Protest 1001-93-108496; Footwear, women's; Weight
breakdown; Samples; Periodic testing; Customs Directive
099 3820 002 concerning laboratory reports; HRL 083879
Dear Area Director:
This is in response to Protest 1001-93-108496 concerning
your action in classifying two styles of women's fabric upper
footwear produced in Spain.
With respect to style SP145, you acknowledge that
classification under subheading 6404.19.25, Harmonized Tariff
Schedule of the United States (HTSUS), is appropriate, as claimed
by protestant. You explain that style SP145 was erroneously rate
advanced to 20% ad valorem plus 90 cents per pair under
subheading 6404.19.80, HTSUS, noting that the shoe has an open
heel and Customs Laboratory Report 2-93-10834-001, dated February
23, 1993, revealed that the shoe is less than 10% by weight of
rubber/plastics. Consequently, we will not consider it as part
of this protest.
FACTS:
The remaining footwear subject to this protest consists of
women's espadrilles, style SP133, having fabric uppers and
rubber/plastic soles. Customs Laboratory Report 2-93-11068-001,
dated March 30, 1993, states that rubber/plastics constitutes
10.6% of the weight of the sample shoe in a size 7.
Based on this laboratory report, the entries covering style
SP133 were liquidated on September 3 and 24, 1993, and October 1,
1993, under subheading 6404.19.35, HTSUS, which provides for
footwear with outer soles of plastics and uppers of textile
material, other. The applicable rate of duty for this provision
is 37.5% ad valorem. A protest was timely filed on December 2,
1993, against your liquidation of the entries.
Protestant submitted a size 7 espadrille style SP133 to an
independent laboratory for analysis. By report dated June 7,
1993, the laboratory stated that style SP133 contained 8.1% by
weight of rubber/plastics. Further, by report dated June 17,
1993, another sample of style SP133 from a subsequent shipment
was analyzed and found to contain 8.8% of rubber/plastics.
In view of the conflicting results reached as to the
percentage by weight of rubber or plastics in style SP133,
counsel for the protestant maintains that style SP133 is properly
classifiable under subheading 6404.19.25, HTSUS, which provides
for footwear of the slip-on type, containing less than 10% by
weight of rubber or plastics and having uppers of vegetable
fibers. The applicable rate of duty for this provision is 7.5%
ad valorem.
ISSUE:
Can the result of a Customs laboratory report on a sample
shoe taken from a single entry be applied to other entries
covering the same footwear made over a 4-month period?
Is style SP133 less than 10% by weight of rubber/plastics?
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:
6404 Footwear with outer soles of rubber, plastics, leather
or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or
plastics:
6404.19 Other:
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 over-lapping the
upper:
Less than 10 percent by weight
of rubber or plastics:
6404.19.25 with uppers of vegetable
fibers . . . .
* * *
6404.19.35 Other. . . . . .
Counsel asserts that Customs cannot classify the subject
shipments of style SP133 based on the result of one laboratory
test on a sample from a single entry. While the espadrilles are
from the same maker and are assigned the same style number,
Customs presumption that the footwear in each of the shipments
was identical, in composition, based on a solitary test, is
inappropriate.
Counsel states that although it is an administrative burden
to test samples from each shipment of a particular style, when
the shipments are widely spaced, such testing is a necessity. To
automatically assume that shipments made at different times,
albeit from the same maker and with the same style number, are
identical is not an appropriate manner in which to determine the
proper classification for such shipments.
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.
Counsel maintains that the circumstances in this instance
are distinguishable from those involved in HRL 083879, in that
there are five entries, the import dates span a four-month
period, and protestant had the identical merchandise tested twice
with test results conflicting with those of the Customs
laboratory.
Counsel's position is that Customs cannot select one sample
from one entry and apply the results of a single laboratory test
to the five entries made during the period of November 1992
through March 1993. Customs actions with respect to the subject
shipment do not constitute "periodic" testing as discussed in HQ
083879. Given the number of entries involved, Customs should
have tested more than one sample before taking such drastic
action.
Since importers generally object to having all their
containers held up and opened so that Customs can take samples,
it is impractical to expect a sample to be analyzed from each
shipment of each style. However, we agree that a single result
should not be applied indefinitely, especially in view of the
changes likely from shipment to shipment, from size to size, and
even from week to week in weight breakdowns for fabric upper,
leather soled footwear.
We have been informed that at the time the rate advances
were proposed, J.F.K. Customs agreed to test another sample of
style SP133 if the importer would offer proof that the subsequent
submission was from one of the subject entries. However, the
importer could not obtain a sample of style SP133 from any of the
entries in dispute.
The independent laboratory report of June 7, 1993,
indicating 8.1% rubber/plastics, in a size 7 style SP133, is
useless in determining exactly what is in the shoes in these
shipments since there is no indication of its origin. Since no
entry is indicated, it may be a "pre-production" sample, made for
display and sales purposes before the production run started. If
so, its value in limiting the proper period of applicability of
the Customs laboratory report is negligible.
The independent laboratory report of June 17, 1993,
indicating 8.8% rubber/plastics in a size 7 style SP133 is
relevant because protestant claimed that it was from a particular
shipment, albeit two months before the report was issued. We
will assume that the claim is true and the sample was chosen
randomly. The problem with the report is that the sample is from
a shipment one month further removed from the entries in question
than the one the Customs laboratory had, and with a two-month
delay from entry until reported; not the two weeks delay as for
the Customs laboratory. Since the jute and leather, in
particular, are natural products which will clearly gain and lose
some moisture over time, testing sooner is clearly better than
testing later.
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, generally 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:
The result of a Customs laboratory report on a sample shoe
taken from a single entry may be applied to other entries
covering the same footwear made over a 4 month period.
Style SP133 is over 10% by weight of rubber/plastics.
Style SP133 is dutiable at the rate of 37.5% ad valorem
under subheading 6404.19.35, HTSUS.
The protest should be denied as to all pairs of Style SP133
on the entries in issue. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, 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