Protest and application for further review no. 5201-94-100318; women's footwear; weight breakdown; heading 6404
Active· CBP ruling HQ 957376· Issued 1996-08-13
Ruling text
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
Division
Source: rulings.cbp.gov — ruling 957376, retrieved 2026-10-12T05:30:00Z, republished verbatim. This digest is informational; only CBP issues binding rulings.