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HQ 960860




January 17, 2001

CLA-2 RR:CR:TE 960860 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6406.99.30; 6404.20.60

Erik D. Smithweiss, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue, 33rd Floor
New York, New York 10167-3397

RE: Reconsideration of New York Ruling Letter (NY) B86847; Midsole Composed of Rubber with Calcium Carbonate Filler, Not of Agglomerated Stone

Dear Mr. Smithweiss:

This letter is in response to your request of June 23, 1997, for reconsideration of NY B86847, issued July 11, 1997, which pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a midsole and a women's shoe (with a platform and heel composed of the same material as the midsole), both of which are made in Brazil. A sample midsole and shoe were submitted with your original request. The shoe was subsequently returned to you and a portion of the sample midsole was retained. We regret the delay in responding.

FACTS:

In NY B86847, the midsole was considered to be a product of plastics with a mineral filler. (The retained portion of the sample midsole does not look or feel like stone.) The midsole was classified in subheading 6406.99.30, HTSUSA, the provision
for "Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Of rubber or plastics," with a special column one duty rate of free (if in compliance with the applicable regulations of the Generalized System of Preferences). The women's shoe (identified as style number 53083, and said to possess a textile fabric upper, a leather outer sole, and a platform and heel composed of the same material as the midsole) was 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," with a general column one duty rate of 37.5 percent ad valorem.

ISSUE:

1) Whether the midsole is classified in subheading 6406.99.30, HTSUSA, as a part of footwear composed of rubber or plastics; or in subheading 6406.99.90, HTSUSA, as a part of footwear composed of other materials.

2) Whether the women's shoe is classified in subheading 6404.20.60, HTSUSA; or in subheading 6404.20.40, HTSUSA, the provision for "Footwear with outer soles of...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 ten percent by weight being rubber or plastics: Valued over $2.50/pair.

LAW AND ANALYSIS:

Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

You essentially contend that the midsole, and the heel and platform of the women's shoe, are composed of a material that is principally calcium carbonate, and which would constitute either artificial stone (e.g., stone agglomerated with binders other than cement) or other mineral substances. You recount that the manufacturer has stated that the sample midsole is composed of the following ingredients, by weight, in the percentages shown:
expanding agent (azodioarbonamide and zinc oxide) ---------- 2 percent curing agent (1,3-BisTerbutyl-peroxy-isopropyl) benzene ----- 2 percent

If the composition of the material composition was as stated, it is not likely that Customs would consider the midsole to be a footwear part composed of rubber and/or plastics, nor likely that the women's shoe would be found to be over 50 percent by weight of rubber or plastics and over 50 percent by weight of textile materials and rubber or plastics with at least ten percent by weight being rubber or plastics. Customs laboratory report number 2-97-30700-001, dated August 19, 1997, however, reflects actual analysis of the material at issue. The report states that the sample is composed of a synthetic rubber with approximately 17 percent calcium carbonate.

In light of the very low percentage of calcium carbonate in the material at issue, arguments regarding Customs past treatment of articles classifiable under headings 6810 and 6815, HTSUSA, will not be addressed. In this case, the results of Customs laboratory testing clearly take precedence over a manufacturer's statement that is unsupported by evidence as to the material's actual composition. We find that the midsole is composed of rubber and a mineral filler, and that it is classified in subheading 6406.99.30, HTSUSA. The women's shoe is classified in subheading 6404.20.6060, HTSUSA.

HOLDING:

The midsole is classified in subheading 6406.99.30, HTSUSA, the provision for "Parts of footwear...: Of rubber or plastics." The special column one duty rate (the Generalized System of Preferences rate) is free.

The women's shoe identified by style no. 53083 is classified in subheading 6404.20.60, HTSUSA, the provision for "Footwear with...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.

NY B86847, issued July 11, 1997, is hereby affirmed.

Sincerely,


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