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.


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.


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.


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.


John Durant, Director
Commercial Rulings Division