HQ 955719: Protest 2704-93-103119; Footwear; Sandal, strippy, women's; Uppers, external surface area; HRL 083879

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 955719 

                         February 7, 1995

CLA-2  CO:R:C:M  955719 DFC 

CATEGORY:  Classification 

TARIFF NO.: 6402.99.30  

District Director of Customs
300 S. Ferry Street 
Room 10001 
Terminal Island, CA 90731 

RE:  Protest 2704-93-103119;  Footwear;  Sandal, strippy,
     women's;  Uppers, external surface area;  HRL 083879 

Dear District Director: 

     This is in response to Protest 2704-93-103119 concerning 
your action in classifying and assessing duty on a women's sandal
produced in China.  A sample was submitted for examination.

FACTS: 

     The shoe involved, identified as "Anne Michelle" style
86592, is a women's strippy sandal with a rubber/plastic sole. 
The upper consists solely of textile strips on top of which are
attached plastic sequins, imitation gem stones, and glass beads. 
The ornaments completely cover the upper textile strips.  

     The entries covering style 86592 were liquidated on July 2,
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 29, 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 comprise 10% or more of the external
surface area of the upper (ESAU) of the sandal 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 read, 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
                              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 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
                              inclement 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 7-93-20846 dated June 7, 1993,
covering style 86592 in size 10 reveals that the ESAU of the
sandal, including A/R, was found to be composed of 89.2% rubber/
plastics and 10.8% glass beads.  Inasmuch as the ESAU of style
86592 is not over 90% rubber/plastics, classification as claimed
by the protestant under subheading 6402.99.15, HTSUS, is
precluded.  

     However. counsel for protestant has submitted an analysis
performed by an independent laboratory.  That analysis shows that
the ESAU of style 86592, was found to be 91.17% rubber/plastics
and 8.83% glass.  Based on this analysis, the ESAU of style 86592
is over 90% plastics, and classification under subheading
6402.99.15, HTSUS, would be appropriate.  

     Our examination of the laboratory worksheets related to the
subject sandal indicates that the analysis by the Customs
laboratory was performed in accordance with the U.S. Customs
Service Laboratory Methods for Footwear.  The footwear
measurement was taken twice by planimeter and confirmed by image
analysis.  We find no error by the Customs laboratory in their
measurement of the ESAU of style 86592.  Further, utilizing image
analysis, the Customs Laboratory also tested the sample of style
86592 which was analyzed by the independent laboratory, and found
the average area of glass to be 13.3%.    

     It should be noted that the independent laboratory analyzed
a different (smaller-approximately size 6 or 7) size shoe than
that analyzed by the Customs laboratory (size 10).  This factor
alone can contribute to a significant difference in test results. 
It has been our experience that unless tight quality controls are
maintained by the manufacturer, shoes of different sizes commonly
differ in the amount of each component that comprises the ESAU. 
     
     With respect to the area measurement of the beads, we note
that the independent laboratory used an "average area" of the
beads in making the calculation.  The average measurement was
based on calculating an average measurement from 10 beads out of
approximately 300.  The Customs laboratory used the actual area
of the beads rather than assuming uniformity.  We also note that
some of these sequins were found to cover the exterior surface of
the beads in several places on the shoe analyzed by the 
independent laboratory. 

     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.
     
     Although two entries were protested, only a sample from the
entry dated April 27, 1993, was subjected to a laboratory
analysis.  Inasmuch as a laboratory analysis was not performed   
on a sample of the footwear from the entry dated May 3, 1993,
counsel urges that the protest be allowed as to that entry.

     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. 

     It is our view that HRL 083879 controls here noting that the
shipments in this instance, were close together, from the same
manufacturer, same style number, same merchandise, etc. 
Consequently, it was not incumbent upon Customs to take a sample
from the second shipment and perform another analysis. 

HOLDING: 

     Glass beads comprise 10% or more of the ESAU of style 86592.

     Style 86592 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 Ruling 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