HQ 955313: Protest 2704-93-102965; Footwear; Sandal, back-strap thong; Uppers, external surface area; Accessories/Reinforcements

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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