CLA-2 OT:RR:CTF:TCM H237638 HvB
Ms. Shirley Moore
D.B. Group America, Ltd.
245 Country Club Drive, Suite 100A
Stockbridge, GA 30281
Re: Modification of NY N170022; Request for Reconsideration; Classification of Cycling Shoes.
Dear Ms. Moore:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) N170022, dated June 29, 2011, concerning the classification of cycling shoes under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N170022, CBP determined that the cycling shoes, items #10105101410, #10205401370, #11204122410, and #10110101410, were classified in subheading 6402.19.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Other: Valued over $12/pair.”
In your letter dated September 17, 2012 to the National Commodity Specialist Division (NCSD), on behalf of Sidi America, Inc., you requested reconsideration of NY N170022, as it pertains to the classification of three styles of cycling shoes (Items #10105101410, 10205401370, and 11204122410) in subheading 6402.19.90, HTSUS. You request classification in subheading 6402.19.15, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Having uppers of which over 90 percent of the external surface area [ESAU] (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter is rubber or plastics...: Other.” We note that Item #10110101410 is not at issue. Your request for reconsideration was forwarded to our office for a decision.
This decision takes into consideration your letter dated March 27, 2013, in which you forwarded independent laboratory reports from ACT Lab LLC (“ACT Lab”) and from Laboratorie Chimico di Venezia, which is located in Italy.
Samples of the subject merchandise have been provided and were examined by the CBP Laboratories and Scientific Services Directorate (LSSD).
We have reviewed NY N170022 and have found that the classification of item #10205401370, Dominator 5 style, in subheading 6402.19.90, HTSUS, was in error. Therefore, for the reasons set forth below, this ruling hereby modifies NY N170022, as it pertains to Item # 10205401370.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocation was published on April 22, 2015, in the Customs Bulletin, Volume 49, No. 16. CBP received no comments in response to this notice.
FACTS:
The merchandise at issue consists of three styles of unisex cycling shoes with rubber/plastic outer soles which are designed to incorporate cleats. The shoes close by means of a strap. The uppers of each shoe are composed of textile mesh and “Lorica” (micro-fibers treated with special resin), which constitutes rubber/plastic for purposes of tariff classification. The rubber/plastics outer soles of each shoe are said to be composed of a graphite composite material. In your September 17, 2012 letter, you admit that the statement in NY N170022, that the subject merchandise does not have a foxing or foxing-like band and is not protective against water, oil, or grease, or chemicals, is correct
The styles at issue are as follows. Item # 10105101410 is identified as the “Genus 5 Pro” style. Item # 10205401370 is identified as the “Dominator 5” style. And, item # 11204122410 is identified as the Spider SRS style.
In NY N170022, CBP used visual estimation to conclude that the rubber/plastic components of the shoes did not account for more than 90% of the uppers since no component material breakdowns were provided. Thus, CBP classified the subject footwear in subheading 6402.19.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber of plastics: Sports footwear: Other: Other: Valued over $12/pair.”
Included in your September 17, 2012 and March 27, 2013 submissions were copies of independent laboratory analyses, to support your assertion that the items are properly classified in subheading 6402.19.1561, HTSUSA, the provision for “Other footwear…sports footwear… having uppers of which over 90 percent of the [ESAU] is rubber or plastics.” The reports issued by ACT Lab are undated and were issued on Item # 11204122410, which is identified as the ”Spider SRS” style, and on Item # 10105301455, which is identified as the “Gen 5 Pro Carb narrow” style. ACT Lab’s report for Item # 11204122410, the Spider SRS style, states that the “% Exposed Area: 7.26%”, with “mesh” written in handwriting adjacent to the percentage. Below this text, the following is handwritten: “92.74% rub/pl. These reports do not indicate what test methods were utilized. The second independent lab reports were issued by Laboratorie Chimico di Venezia for the “Gen 5 Pro” and the “Spider SRS” styles. The reports are accompanied by certificates. Both the certificates and the laboratory reports are entirely written in Italian and do not provide item numbers. For the “Spider SRS” style, the Italian lab determined that the “material plastico 92%” and that the “material tessile is 8%”. For the “Calzatura Sidi Gen 5 Pro” style, the report states that the “material plastico 94%” and that the “material tessile 6%”. The reports states that method “MI13VEA” was used.
In a letter dated September 17, 2012, you contacted NCSD to request reconsideration of NY N170022, and submitted samples of the merchandise. NCSD sent the samples to LSSD for analysis on September 28, 2012. LSSD reported lab analysis of the subject merchandise on December 6, 2012, which is detailed below:
For Item # 10205401370, the Dominator 5 style, LSSD found that the External Surface Area of the Upper (ESAU), consisted of 91.1% rubber/plastic, including reinforcements and/or accessories. See Lab Report # NY20121859, dated December 6, 2012.
For item # 10105101410, the Genus 5 Pro style, LSSD found that the ESAU was 89% rubber/plastic, including reinforcements and/or accessories. See Lab Report # NY20121860, dated December 6, 2012.
For the Spider SRS style, item # 11204122410, the, LSSD determined that the ESAU was 89.7% rubber/plastics, including reinforcements and/or accessories. See Lab Report # 20121857, dated December 6, 2012.
After being advised of these lab results, on March 27, 2013, you requested that we conduct a second laboratory testing of two of the items at issue in the ruling, and enclosed additional samples of the Genus 5 Pro and Spider SRS styles, item # 1010510410 and item # 11204122410, respectively.
On November 8, 2013, LSSD issued Supplemental Laboratory Report # NY 2012860S for Item # 10105101410, the Genus 5 Pro style. LSSD concluded that the ESAU of the upper is 89.1% rubber or plastics. In addition, LSSD issued Supplemental Laboratory Report # NY20121857S for the Spider SRS style, Item # 11204122410. LSSD concluded that the ESAU of the shoe is 89.5% rubber or plastic, including reinforcements and/or accessories.
ISSUE:
Whether the subject cycling shoes should be classified in subheading 6402.19.15, HTSUS, as other sports footwear having uppers of which over 90 percent of the ESAU is rubber or plastics, or under subheading 6402.19.90, HTSUS, as other sports footwear valued over $12/pair.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS subheadings under consideration are the following:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:
***
6402.19 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 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):
***
***
6402.19.15 Other:
***
Other:
***
6402.19.90 Valued over $12/pair
Note 3 to Chapter 64, HTSUS, provides in part:
The terms “rubber” and “plastics” include woven fabrics or other textile products with an external layer of rubber or plastics being visible to the naked eye; for the purpose of this provision, no account should be taken of any resulting color; and
…
Note 4 to Chapter 64, HTSUS, provides in part:
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;
…
* * * * *
In the present case, there is no dispute at the heading level. The subject merchandise consists of cycling shoes with rubber outer soles and uppers composed of rubber/plastic. As such, it is classified in heading 6402, HTSUS, as “Other footwear with outer soles and uppers of rubber.” The instant issue is whether, at the subheading level, the products meet the requirements of subheading 6402.19.15, HTSUS, i.e. whether the ESAU of the shoe’s upper is over 90% rubber/plastic.
With respect to Item # 10205401370, the “Dominator 5” style, CBP Lab report # NY20121859, dated December 6, 2012, found that the ESAU is 91.1% rubber or plastics, including reinforcements and/or accessories. Therefore, the Dominator style meets the requirements of HTSUS subheading 6402.19.15.
Next, we consider the two remaining styles of shoes, the Genus 5 Pro and the Spider SRS, respectively, Items # 10105101410 and # 11204122410. You argue that the uppers of the instant footwear are more than 90 percent rubber/plastic. In support, you submit copies of independent laboratory reports from two different labs.
The first set of laboratory reports is from ACT Lab, one of which is for an item number not at issue. The second set of laboratory reports, which are written in Italian, are from Laboratorie Chimico di Venezia. You also argue that a third lab, Customs Laboratory Services, located in Rockville, MD (that did not examine the merchandise at issue), advised you that “CBPL Method 64-04 was no longer used by [CBP] because of the inherent error in the method caused by the added toner and often inconsistent weight of ink/toner on the photocopied paper pieces that are weight to determine the ESAU.”
Pursuant to 28 U.S.C. § 2639(a)(1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a CBP decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, "[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).
In cases such as this, where an outside laboratory report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and takes precedence over the outside report. See HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). CBP cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Therefore, CBP must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. See HQ 963748, dated November 20, 2000. CBP’s additional laboratory analysis did not deviate from the original lab reports results, which concluded that the ESAU of the uppers of the Genus Pro and Spider SRS styles was less than 90% rubber/plastic. Subheading 6402.19.90, HTSUS, describes other footwear which has “uppers of which over 90 percent of the external surface area (including reinforcements […]) is rubber or plastics [emphasis added].” Since LSSD found that the ESAU (including reinforcements) was 89.1% rubber/plastic in the case of the “Genus 5 Pro” style, and 89.5% rubber/plastic in the case of the “Spider SRS” style, we therefore disagree that the instant footwear is classifiable in subheading 6402.19.90, HTSUS.
Moreover, the independent laboratory reports do not conclusively show that CBP’s lab reports are erroneous. One of the independent lab reports submitted with your September 17, 2012 letter identifies a shoe with a style name and item number that is not at issue. The other independent lab report for the item #11204122410, the Spider SRS Style, is an unreliable document as it has a handwritten notation on it and does not state what testing method was used. The reports are also undated. You have not conclusively shown that the testing method used by the CBP laboratory is in error or, that the CBP's laboratory results are erroneous, as you simply argue that there is an allegedly better testing method. Therefore, you have failed to overcome CBP’s presumption of correctness regarding Item # 10105101410, the Genus 5 Pro style, and Item # 11204122410, the Spider SRS style. See HQ H005111, dated August 20, 2007.
Accordingly, NY N170022 is affirmed with respect to the Spider SRS and the Genus 5 Pro styles (items # 11204122410 and # 10105101410). With respect to Item # 10205401370, the “Dominator 5” style, NY N170022 is modified to reflect that it is correctly classified in subheading 6402.19.15, HTSUS.
HOLDING:
Under the authority of GRI 1, Item # 10205401370, the “Dominator Pro” is provided for in heading 6402, HTSUS. More specifically, it is classified under subheading 6402.19.15, HTSUS, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 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 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: Other.” The general, column one duty rate is 5.1%.
Under the authority of GRI 1, item # 10105101410, the “Genus 5 Pro” style, is provided for in heading 6402, HTSUS. More specifically, it is classified under subheading 6402.19.90, HTSUS, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Other: Valued over $12/pair.” The general, column one duty rate is 9%.
Under the authority of GRI 1, item # 11204122410, the “Spider SRS” style, is provided for in heading 6402, HTSUS. More specifically, it is classified under subheading 6402.19.90, HTSUS, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Other: Valued over $12/pair.” The general, column one duty rate is 9%.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rat are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N170022 is hereby MODIFIED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division