International Seaway Trading Corp. v. United States , 488 F.2d 544 ( 1973 )

Lane, Judge.

This appeal is from the decision arid judgment of the United States Customs Court, First Division, 69 Cust. Ct. 38, 349 F. Supp. 1019, C.D. 4375 (1972) overruling appellant’s protest against the classification of footwear invoiced as “Basketball High Shoes” under item 700.60 of the Tariff Schedules of the United States [TSUS] as “ [f]ootwear (whether or not described elsewhere in this subpart) which is over 50 percent by weight of rubber * * *: Other” and assessed at 20% ad valorem. Appellant claims the merchandise, should be classified under item 700.70, TSUS, as “[f]ootwear * * * [w]ith soles of material other than leather: [w]ith uppers of vegetable fibers,” at a duty of 15% ad valorem. Involved in the controversy is Schedule 4, Part 4, Subpart B, Headnote 2 [hereinafter cited as Headnote 2], which reads:

2. Eor the purposes of the tariff schedules, the term “rubber” means a substance, whether natural or synthetic, in bale, crumb, powder, latex, or other crude form, .which can be vulcanized or otherwise cross-linked, and which after cross-linking can be stretched at 68° E. to at least three times its original length and which, after having been stretched to twice its original length and the stress removed, returns within 5 minutes to less than 150 percent of its original length, and includes such substance whether or not containing fillers, extenders, pigments, or rubber-processing chemicals.

The nature of the “Basketball High Shoes,” apparently made with heavy midsoles for training purposes, may be seen from certain stipulated facts and from Defendant’s Collective Exhibit “A”, which is a copy of U.S. Customs Laboratory Report No. S12355, referred to in the following stipulation.

The stipulation reads:

1. The uppers are of vegetable fibers.

2. The footwear is in no part of leather.

3. The midsoles of the instant footwear contain, as components, among other things, “Natural Rubber RSS” and “Synthetic Rubber”. That “Natural Rubber RSS” and “Synthetic Rubber” are substances, whether natural or synthetic, in bale, crumb, powder, latex, or other crude form, which can be' vulcanized or otherwise cross-linked, and which after cross-linking, can be stretched at 68° E. to at least three times its original length and which, after having been stretched to twice its original length and the stress removed, returns within 5 minutes to less than 150% of its original length.

4. Both parties agree to be bound by a determination by the Customs Laboratory as to whether the vulcanized so-called iron powder midsole material can be stretched to three times its original length.

5. Defendant’s Collective Exhibit “A” is correct in its determination of the relative weights of the respective materials insofar as they were therein determined.

Defendant’s Collective Exhibit “A” (Customs Laboratory Report No. S12355) includes the following statements:

The midsoles in their present condition (containing the iron powder) are not capable of being stretched to three times their original length. In our opinion the rubber hydrocarbon of the midsole would conform to the physical requirements of the term “rubber” as defined in Headnote 2, Subpart B, Part 4, Schedule 4 of TSUSA1969.

The weight of each sneaker minus the lacing was found to be 272 grams (left sneaker) and 283.5 grains (right sneaker). The midsoles were found to weigh 156.5 grams (left sneaker) and 169.2 grams (right sneaker). Three tests on the midsole of the left sneaker showed an average of 89% by weight of iron and iron oxide. This is equivalent to 51.2% by weight of the left sneaker minus the lacing. Assuming 89% by weight of iron and iron oxide in the right midsole, the right sneaker minus the lacing contains 53.1% iron and iron oxide.

Three tests on the midsole of the right sneaker showed an average of S9.5% by weight of iron and iron oxide. This is equivalent to 53.4% by weight of the right sneaker minus the lacing.

Oral testimony by two witnesses for the United States and additional exhibits were also considered by the trial court.

The Customs Court regarded the issue in this case to be whether the midsole material, which according to the Customs Laboratory Report constitutes over 50 percent by weight of the imported footwear, consists solely of “rubber” as defined in Headnote 2, quoted above. The court below construed Headnote 2 as referring to all substances in crude form, wlietlier or not containing fillers, extenders, pigments or rubber-processing cliemicals, which, are capable of being cross-linked and of meeting the requisite tests.

In this interpretation, the Customs Court disagreed with the Government and with the amicus curiae. The Government takes the position that to be “rubber” within the meaning of Headnote 2, it is only necessary that a substance contain a natural or synthetic rubber which in crude form, before adding any fillers, extenders, pigments or rubber-processing chemicals, is capable of being cross-linked and, thereafter, of meeting the specified stretch and return tests. As to the mid-sole in the imported basketball shoe, the Government and the amicus curiae contend that the entire midsole is “rubber” under the Headnote 2 definition because the specified stretch and return tests should apply only to the precursor natural and synthetic rubber materials (without filler) used in the manufacture thereof and the stretch and return tests do not apply to the finished midsole.

Even though the Customs Court on the one hand and the Government and amicus on the other hand employed different interpretations of Headnote 2, they were in agreement that the classification of the imported shoes as footwear which is over 50 percent by weight of rubber under item 100.60, TSUS, was correct. The court below found that appellant had not demonstrated that the midsole material in crude form (with an actual composition of about 10 percent by weight natural and synthetic rubber and about 90 percent by weight iron powder) could not have been vulcanized or cross-linked in such a manner as to pass the stretch and return tests even though the actual samples submitted to the Customs Laboratory could not pass those tests. Thus, the Customs Court imposed on the importer the burden of proving a negative — that the midsole material could not have been cross-linked by another process to yield a cross-linked mixture which would, in fact, pass the stretch and return tests. We take a different view of this crucial aspect of the case.

Our disposition of this appeal will focus on the midsole portion of the imported shoes since the midsole constitutes over 50 percent by weight of the total weight of each shoe. Both parties agreed to be bound by a determination of the Customs Laboratory as to whether the imported midsoles are capable of being stretched to three times their original length. The Customs Laboratory determined that the imported midsoles are not capable of being stretched to three times ' their original length.

We hold that appellant met its burden of proof regarding the impropriety of the Government’s classification by evidence in the form of the Customs Laboratory report. We find that there is no evidence in the record showing that the Government, thereupon, met its burden of going forward to prove that the cross-linking could have been performed by some other method so that the midsole mixture would meet the stretch and return tests. It may be that in this case, involving as it does a mixture containing nearly 90 percent by weight of iron powder, the Government would be hard-pressed to make such an affirmative showing.

We agree with the Customs Court that the correct interpretation of Headnote 2 is that “rubber” means a substance in crude form, whether or not containing fillers, extenders, pigments, or rubber-processing chemicals, which is capable of being cross-linked and, thereafter, of meeting the specified tests. However, the Customs Court is in error in its statement that there is not a scintilla of evidence that the midsole mixture was incapable, after cross-linking, of meeting the stretch and return tests. That is what the Customs Laboratory report is all about. The Customs Court makes a distinction without a difference by treating the finished midsoles as something different from the vulcanized midsole mixture for the stretch and return test requirements of Headnote 2. Moreover, the statement of the Customs Court places on appellant the burden of demonstrating that all other methods of cross-linking the midsole mixture would produce materials which would fail the stretch and return tests. Such a burden would neither be practical nor fair, particularly in view of the stipulation of the parties agreeing to be bound by a determination of the Customs Laboratory as to whether the instant vulcanized midsole could meet the stretch test.

The interpretations of Headnote 2 urged by the Government and by the amicus curiae require that only the “Natural Rubber RSS” and the “Synthetic Rubber” components (excluding the filler) of the midsole mixture be capable of being cross-linked and thereafter passing the stretch and return tests; whereas the filler is included for purposes of the weight determination under item 700.60, TSUS. In other words, they urge that the iron powder filler be excluded when making the qualitative chemical identification under Headnote 2, but that the iron powder filler be included when making the quantitative weight determination under item 700.60, TSUS. We think these interpretations are inconsistent. Such inconsistency should not be imputed to the Congress in the absence of clear evidence of intent — evidence which does not appear in the record or briefs.

Alternatively, the Government contends that appellant failed to establish that the imported merchandise was not over 50 percent by weight of “plastics.” We will not consider this contention raised for the first time on appeal. The Customs Court did not address this “plastics” question in its opinion, and the record before it dealt entirely with the “rubber” question. Since the Government’s alternative contention entails a new issue which was not raised previously, wre see no basis for entertaining it at this stage of the case.

Finally, we come to appellant’s claim that the proper classification of the imported shoes is item 700.10, TSUS, “[f]ootwear, with uppers of fibers: [w]ith soles of material other than leather: [w]ifch uppers of vegetable fibers.” Appellant has carried the burden of proving that item 700.70 is the proper classification by virtue of the facts stipulated by the parties, quoted above. The imported shoes are footwear with uppers of vegetable fibers and no part of the footwear is leather. Therefore, the proper classification of the imported merchandise is item 700.70, TSUS. The judgment of the Customs Court is reversed.