Protest and Application for Further Review No 1704-14-100718; Classification of certain slip-on footwear for girls.

June 30, 2016 HQ H270097 CLA-2 OT:RR:CTF:TCM HQ H270097 TSM CATEGORY: Classification TARIFF NO.: 6402.99.49 Port Director, Port of Atlanta, Georgia U.S. Customs and Border Protection 157 Tradeport Drive Atlanta, GA 30354 Attn: Eric Buchanan, Supervisory Entry Specialist Re: Protest and Application for Further Review No: 1704-14-100718; Classification of certain slip-on footwear for girls. Dear Port Director: The following is our decision regarding Protest and Application for Further Review No. 1704-14-100718, timely filed on November 7, 2014, on behalf of Target General Merchandise Inc. (“Target” or “Protestant”), regarding the tariff classification of slip-on ballet-style flat shoes for girls, identified as “FLETA,” under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to the Protestant’s request, a meeting regarding this matter was held with members of my staff on June 15, 2016. FACTS: The subject merchandise consists of slip-on ballet style flat shoes for girls, identified as “FLETA” shoes. The “FLETA” upper has textile and rubber/plastic surfaces. It consists of rubber or plastic glitter completely obscuring the material underneath, a textile strip covering a seam at the back of the heel, and textile edging around the topline. The “FLETA” outer sole also has textile and rubber/plastic surfaces that are in contact with the ground. A sample of the “FLETA” shoes was taken from an entry dated September 30, 2013, and forwarded by U.S. Customs and Border Protection (“CBP”) to the CBP laboratory for analysis. The sample was identified as Item No. FD612-1, Size 13, and described as a black colored “Girl’s Glitter/Fabric Ballet Shoe.” The CBP laboratory report, dated April 23, 2014, determined that the external surface area of the upper was 87.6 percent plastic and 12.4 percent textile. The CBP laboratory report indicated that the sample had a rubber or plastic outer sole to which a thin layer of textile material had been applied in four areas. The CBP laboratory examined the external surface area of the outer sole and determined that the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 51.5 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 48.5 percent. The CBP laboratory report indicates that method CBPL 64-01 was used. After April 23, 2014, the date of the CBP laboratory report, Protestant also submitted the “FLETA” shoe for laboratory testing. Protestant has submitted several independent laboratory report test results. The first laboratory report (Exhibit B of the protest) is from Intertek Testing Services Shenzhen Ltd., Guangzhou, China (“Intertek”). This laboratory report, dated July 1, 2014, indicates that six different sizes (sizes 1, 2, 3, 4, 5, and 13) of the FLETA footwear style FD612-1 in color black were tested. For size 1, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 46.84 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 53.16 percent. For size 2, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.94 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.06 percent. For size 3, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.49 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.51 percent. For size 4, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.18 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.82 percent. For size 5, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 46.98 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 53.02 percent. Finally, for size 13, the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.92 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.08 percent. The lab report indicates that method CBPL 64-01 was used. Protestant submitted seven laboratory reports (Exhibit C of the protest) from Guardian Laboratories Inc., Brockport, New York, (“Guardian”), one laboratory report for each of the FLETA shoe sizes 1, 2, 3, 4, 5, 6, and 13. The lab reports for sizes 6 and 13 are dated July 22, 2014. These lab reports indicate that black Cherokee style FLETA 93094851 shoes were tested. The lab reports for sizes 1, 2, 3, 4, and 5 are dated July 28, 2014. These lab reports indicate that the Cherokee style FLETA shoes in colors black (sizes 1 and 4), red (sizes 2 and 5), and gold (size 3) were tested. All seven lab reports state that “all measurements were in accordance with CBP laboratory methods using Tamayo Digital Planimeter Planix 6. Reference CBPL Method 64-01.” All seven lab reports also state: “Per client’s instructions: The powder test was used to identify the areas in contact with the ground which means that the deeper grooves, the area in front of the heel, and the flared-up edge of the forward area would be excluded as not touching the ground”. Finally, all seven lab reports indicate that the samples were tested twice in accordance with the following: “Also per client’s instruction: a second measurement was taken to include the flared-up edge.” For size 1, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 41.00 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 59.00 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.35 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.65 percent. For size 2, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 41.31 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 58.69 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.59 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.41 percent. For size 3, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 40.84 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 59.16 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 47.64 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 52.36 percent. For size 4, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 39.49 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 60.51 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 46.95 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 53.05 percent. For size 5, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 41.24 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 58.76 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 46.78 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 53.22 percent. For size 6, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 41.22 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 58.78 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 46.59 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 53.41 percent. For size 13, the first measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 42.59 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 57.41 percent. The second measurement resulted in the following: the percentage of rubber/plastic on the external area of the outer sole in contact with the ground was 48.29 percent, while the percentage of textile on the external area of the outer sole in contact with the ground was 51.71 percent. In a letter dated November 16, 2015, Protestant supplemented its protest with another laboratory report. It explained that a third laboratory, Customs Laboratory Services, Rockville, Maryland, (“CLS”), had tested the FLETA footwear. This laboratory report, dated September 21, 2015, indicates that a size 13 of the “ES Originals Style FLETA” footwear was tested. The laboratory report findings state: “The ground contact surface of the outsole was measured once including the rubber/plastic perimeter band at the toe and once disregarding it. The rubber/plastic outsole has been partly covered with applied non-woven textile fabric; the ground-contact areas of the outer sole were found to be 48.9 percent rubber/plastic and 51.1 percent textile material when including the perimeter band, and 41.8 percent rubber/plastic and 58.2 percent textile material when disregarding the perimeter band.” The report concludes: “In our opinion, the sample ‘ES Originals Style FLETA’ has a majority ground contact surface of textile material”. The report is not signed and does not indicate the testing methodology used. The FLETA footwear was entered in six separate entries between August 25, 2013 and September 30, 2013, under subheading 6402.99.4100, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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…: Having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U. S. note 5 to this chapter.” The entries of the FLETA footwear were liquidated between October 10, 2014 and October 17, 2014, under subheading 6402.99.4980, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: 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…: Other.” According to Protestant, textile is the material on the outer soles with the greatest surface area in contact with the ground. Protestant concludes that the FLETA footwear is classified in subheading 6402.99.4100, HTSUS, as entered. ISSUE: Whether the “FLETA” footwear is properly classified under subheading 6402.99.41, HTSUS, as footwear having outer soles with textile materials having the greatest surface area in contact with the ground, or in subheading 6402.99.49, HTSUS, as other footwear. LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1704-14-100718 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (b) because Protestant alleges that the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs).  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 2 through 6 may then be applied in order.  In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS provisions under consideration are as follows: 6402 Other footwear with outer soles and uppers of rubber or plastics: Other footwear: 6402.99 Other: Other: 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 6402.99.33 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: 6402.99.4100 Having outer soles with textile materials having the greatest surface area in contact with the ground, but not taken into account under the terms of additional U.S. note 5 to this chapter 6402.99.49 Other Note 3 to Chapter 64 provides, in pertinent part, as follows: For the purposes of this chapter: (a) 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 change of color. Note 4(b) to Chapter 64 provides as follows: Subject to note 3 to this chapter: * * * (b) The constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments. Additional U.S. Note 5 to Chapter 64 provides as follows: For the purposes of determining the constituent material of the outer sole pursuant to note 4(b) of this chapter, no account shall be taken of textile materials which do not possess the characteristics usually required for normal use of an outer sole, including durability and strength. ENs Chapter 64 provide, in pertinent part, the following: (C)  The term “outer sole” as used in headings 64.01 to 64.05 means that part of the footwear (other than an attached heel) which, when in use, is in contact with the ground. The constituent material of the outer sole for purposes of classification shall be taken to be the material having the greatest surface area in contact with the ground.  In determining the constituent material of the outer sole, no account should be taken of attached accessories or reinforcements which partly cover the sole (see Note 4 (b) to this Chapter). These accessories or reinforcements include spikes, bars, nails, protectors or similar attachments (including a thin layer of textile flocking (e.g., for creating a design) or a detachable textile material, applied to but not embedded in the sole). The dispute is at the 8-digit subheading level, and whether the “FLETA” footwear has outer soles with textile materials having the greatest surface area in contact with the ground. The CBP laboratory tested a sample of the “FLETA” footwear taken from an entry at issue in this protest. The CBP laboratory findings from the report state, in relevant part, as follows: The sample is slip-on type footwear, Item No. FD612-1, Size 13. The sample is black colored and is described as “GIRL’S GLITTER/FABRIC BALLET SHOE”. The sample has closed toe/closed heel and does not cover the ankle. The external surface area of the upper is 87.6% plastic and 12.4% textile. The sample has a rubber or plastic outer sole to which a thin layer of textile material has been applied in four areas. The external surface area of the outer sole is 51.5% plastic and 48.5% textile (Average of four tests). The sample is not made by one piece molding and does not have a foxing or foxing-like band. The CBP laboratory indicates that method CBPL 64-01 was used. Protestant agrees that the method used by the CBP laboratory to determine the constituent material of the outer sole is the same method used by the Intertek and Guardian laboratories, and recognizes that it is the same procedure CBP has used in the past. Protestant explains that all of the laboratories, including the CBP laboratory, excluded the surface area of the outer sole directly in front of the raised heel from their total area measurements for determining the percentages of textile and rubber/plastic in contact with the ground. Protestant agrees with the CBP laboratory textiles measurements for what is in contact with the ground, but disagrees with the CBP laboratory rubber/plastic measurements for what is in contact with the ground. Protestant explains that the independent laboratories excluded the areas covered by “deep grooves.” Protestant further explains that it has compared the independent laboratory reports to the CBP laboratory report and “believes” that the CBP laboratory report findings result from “Customs’ failure to take into account certain deep grooves that were cut into the rubber/plastic portions of the outer sole.” Protestant describes the “deep grooves” as “those areas within the grooves that cannot possibly come in contact with the ground when the shoe is in use.” Protestant distinguishes areas of the outer soles covered by “deep grooves” which should be excluded from the calculations, from areas of the outer soles covered by “shallow grooves” (that run horizontally across the bottom of the “FLETA” outer soles) which should be included in the calculations. Protestant argues that an adjustment of the CBP laboratory measurements to exclude the area in the “deep grooves,” will result in a finding that the constituent material of the outer soles is textile materials. Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor C