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HQ 958608




February 16, 2000

CLA-2 RR:CR:TE 958608 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.20.60

Port Director
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Decision on Application for Further Review of Protest No. 1001-94-106827, filed October 5, 1994, concerning the classification of women’s shoes

Dear Sir:

This is a decision on a protest timely filed on October 5, 1994, against your decision in the classification and liquidation of women’s footwear entered in January 1994. The protest and Application for Further Review (AFR) were denied by your office on October 6, 1995. On December 19, 1995, this office approved a request to set aside the denial of AFR in accordance with the provisions of 19 U.S.C. § 1515(c).

FACTS:

You classified the merchandise under subheading 6404.20.60, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Other,” with an applicable duty rate of 37.5 percent ad valorem.

The protestant claims that the goods should be classified in subheading 6404.20.40, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Not over 50 percent by weight of rubber or plastics and not over 50 percent by weight of textile materials and rubber or plastics with at least 10 percent by weight being rubber or plastics: Valued over $2.50/pair,” with an applicable duty rate of 10 percent ad valorem.

The footwear at issue, identified by style name “N-Phoebe,” is described on the packing list as a “ladies faille plain pump” shoe. Customs laboratory report number 2-94-10973-001, dated April 20, 1994, states that the sample analyzed is a lady’s shoe, style “N-Phoebe.” The report states that the external surface of the upper is composed of textile fibers and that the sole is made of leather. The shoe was found to have the following percentage composition, by weight, of all components:

Fiber -- 26.6 percent
Rubber/Plastic -- 25.6 percent
Leather -- 21.2 percent
Paper -- 14.3 percent
Metal -- 12.3 percent

Customs thus found the shoe to be composed of over 50 (52.2) percent by weight of textile materials and rubber/plastics.

The protestant has submitted an analytical report dated July 17, 1995, performed by Customs Science Services, Inc. (CSS). The sample tested is designated as “Nine West Style Phoebe-5 Woman’s Pump.” The report describes the manner in which the shoe was tested and analyzed as follows:

The shoe was taken apart and adhesive was found on several parts. Some adhesive was removed and examined, and was found to be very sticky and somewhat elastic. When deformed it did not return to its original shape, and upon prolonged exposure to air, it lost neither stickiness nor elasticity. The properties of the adhesive indicate that it is a “prepared adhesive” of Heading 35.06. Some adhesive was removed and weighed separately. Additional adhesive was removed from constituent parts of the shoe via solventextraction by another laboratory. The plastic heel body was inadvertently destroyed during the extraction: its pre-extraction weight was counted entirely as rubber/plastic.

CSS found the shoe to have the following percentage composition, by weight, of all components:

Textile Material -- 16.2 percent
Rubber/Plastics -- 32.0 percent
Metal -- 11.8 percent
Leather -- 19.8 percent
Paperboard -- 14.6 percent
Other non-R/P+T -- 0.2 percent
Adhesive -- 5.4 percent

The results of the analysis by CSS indicate that the percentage weight of the textile material and rubber/plastics components (not all adhesives included) together comprise 48.2 percent of the total weight of the shoe. By physically and chemically extracting used adhesives, and by removing from consideration their percentage weight as components of rubber or plastics, CSS concludes that the shoe is classifiable in subheading 6404.20.40, HTSUSA.

ISSUE:

Whether the percentage weight of adhesives which can be separated from the footwear components to which they are attached when imported are considered separately as materials other than rubber or plastics.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The issue to be decided is essentially whether adhesives which can be physically or chemically separated from the footwear components to which they are attached and with which they have been imported, should be separated, and their percentage weight considered separately as materials other than rubber or plastics.

The Port based its denial of this protest and AFR on Headquarters Ruling Letter (HQ) 954769, issued August 8, 1995. At issue in the ruling was Customs testing methodology used to determine, for classification purposes, relative weights of materials used in the construction of imported footwear. Counsel contended in that case that Customs was required to consider the weight of adhesive separately from the foam plastic midsole into which the adhesive had been absorbed, and to list its weight as a separate substance in the laboratory report. Counsel noted that in HQ 732769, issued February 9, 1990, Customs had separately identified connective material such as thread in the country of origin marking of a baby shoe upper; and that in HQ 075831, issued February 28, 1986, Customs had considered adhesives separately from “rubber or plastics” in component material in chief value determinations, allowing their cost to be subtracted from the rubber/plastic cost. This office pointed out the special treatment accorded to certain footwear component materials, citing note 3 to chapter 64, HTSUSA, which in pertinent part provides:

3. For the purposes of this chapter:
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.

In declining to separately consider the adhesives of HQ 954769, we stated:
we are not persuaded thatthe weight of the adhesives which have been bonded to, or absorbed by the plastic components of the footwear, must be added as a separate material appearing in the footwear. If the drafters of Chapter 64, HTSUS, wanted adhesive to be separately considered they could have done so.In this instance the adhesive is a “used” adhesive which can no longer be used as such.It is impracticable to remove adhesive which has been absorbed by the foam plastic midsole without degrading the absorbent host material.

We held that the weight of the adhesives which had bonded to, or been absorbed by, plastic components of the footwear, would be listed as rubber/plastic rather than as a separate material.

In this case, protestant, through counsel, recounts that CSS (and the laboratory authorized by CSS to perform the solvent extraction process) separated adhesives only from textile components of the upper and heel (not from the foam midsole or other “soft” plastic components), that none of the components was degraded by any removal process, and that allowing the protest would therefore not be inconsistent with the facts and holding of HQ 954769. Protestant cites to several Customs rulings (including those referenced above) and judicial determinations to support its claim that adhesives must be considered separately and not included in the percentage weight of the rubber/plastics components of footwear.

In New York Ruling Letter (NY) A87284, issued to counsel on behalf of the protestant on October 8, 1996, Customs classified three substances said to be the adhesives used to make the “N-Phoebe” shoe. Protestant, through counsel, emphasizes the fact that none of the materials was classified as a plastic (within chapter 39, HTSUSA, which covers “Plastics and Articles Thereof”) or a rubber (within chapter 40, HTSUSA, which covers “Rubber and Articles Thereof”). The substances identified as “NP 159” and “Top Brand Latex Adhesive” were classified under heading 3506, HTSUSA, which covers “Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg.” The third substance, identified as “NP 36AF,” was classified under heading 3208, HTSUSA, which covers “Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a nonaqueous medium; solutions as defined in note 4 to this chapter.”

Protestant alleges the relevance to the instant case, of the facts and holding in Naftone, Inc. v. United States, 74 Cust. Ct. 1, C.D. 4578 (1975). The issue was whether a substance with the trade name “Desmocoll 400” was more specifically provided for as “Cement, not specially provided for” under item 494.60, TSUS, or as “plastics materials” under item 405.25, TSUS. The merchandise was imported in solid form as chips or flakes and, after being dissolved in solvent (after importation), would be used to bond polyvinyl chloride (PVC) to itself and other materials. Noting that as a practical matter, the substance was not used as an adhesive in its imported condition, but was capable of such use, the Court found that:

A substance which is specifically designed for the cementing of materials to each other and which, in its imported condition can accomplish this purpose, is a cement within the meaning of the term. Even if this substance is a plastics material, in the sense that the cement it forms is a “plastic” cement, it is more specifically provided for as a cement.

The prepared adhesives classified in NY A87284, and the cement at issue in Naftone, are substances that are distinctly different from the used adhesive imported as part of the footwear at issue here. The principal constituent elements of the prepared adhesives, the cement, and the used adhesive, are rubber/plastics. The used adhesive, however, is not what the Naftone Court deemed to be “[a] substance which is specifically designed for the cementing of materials to each other and which, in its imported condition can accomplish this purpose.” After being applied to the components of the “N-Phoebe” shoe, the solvents and other carrier materials of the prepared adhesives evaporate. At that point and in its imported condition, the rubber/plastics material is a component part of footwear and is no longer “[a] substance which is specifically designed for the cementing of materials to each other.”

Protestant, through counsel, maintains that in HQ 088194, issued January 2, 1991, Customs treated adhesives as a distinct component material – not a plastic material - for purposes of footwear classification, and that adhesives must likewise be excluded in determining the percentage weights of footwear components such as rubber, plastic, and textile. HQ 088194 was this office’s response to five questions concerning testing and standards for measuring a plastic coating on footwear leather. No footwear was classified in the ruling. Question number 5 asked: “If the coating is laminated on the leather, will the adhesive be included or excluded from the measurement?” We responded: “Under our procedures, the adhesive is not being included in the measurement of the thickness of a laminated coating.” Neither the question, the response, nor the ruling made any mention of the composition of any adhesive, whether plastic or not. The ruling does not state that a used adhesive of plastic – applied to laminate a plastic coating onto leather – would not be treated as “a plastic material,” even though its thickness is not included in the measurement of a separate outer coating of plastics.

Unlike the basis upon which separate treatment has been accorded adhesives and connective materials in the cases discussed above, the language of subheading 6404.20, HTSUSA, renders the percentage weights of textile materials and rubber or
plastics statutorily determinative of footwear classification in this case. We cannot exclude, disregard, or otherwise separately treat, adhesives which, by their application to footwear components prior to importation, have become “used” adhesive materials of rubber and/or plastics. We thus find that the results of Customs laboratory testing take precedence over the test results obtained by CSS. The lady’s shoe identified as “N-Phoebe” was properly classified in subheading 6404.20.60, HTSUSA, the classification assessed on the currently protested entry.

HOLDING:

The women’s pump shoe identified by style name “N-Phoebe” is classified in subheading 6404.20.60, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of leather or composition leather: Other.” The general column one duty rate is 37.5 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,


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