HQ 962262

November 19, 2001

CLA-2 RR:CR:TE 962262 GGD

CATEGORY: Classification

TARIFF NO.: 6404.20.60

Port Director

U.S. Customs Service

555 Battery Street, Suite 319

San Francisco, California 94111

RE: Decision on Application for Further Review of Protest No.
2809-98-100590, filed

August 25, 1998, concerning the classification of women's shoes.

Dear Madam:

This is a decision on a protest timely filed on August 25, 1998, against
your decision in the classification and liquidation of women's footwear
entered in November 1997 and liquidated in May 1998.

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.

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The footwear at issue, identified by style name "Evelyn," is described
by the protestant as a ladies\' high heel pump shoe with an outer sole
of leather, a man-made fiber textile upper, midsoles of paperboard and
foam plastic (with a superimposed layer

of textile scrim), a plastic heel tip and lining, and a heel fastened to
the upper by means of five screws penetrating a metal shank.

Customs performed a laboratory analysis on a single shoe sample taken
from the protested shipment at issue. Customs laboratory report number
8-1998-10336-001, dated May 6, 1998, states that the sample analyzed is
a lady's black shoe, size 6M, style "Evelyn" with a \"Villager\" label.
The report further states that the shoe is composed of \"A TEXTILE
UPPER, HEEL COVER, HEEL STIFFENER, MIDSOLE, AND LABEL; RUBBER/PLASTIC
HEEL, TIP, MIDSOLE, INSOLE, AND LINING; LEATHER SOLE; PAPER MIDSOLE; AND
METAL SHANK AND SCREWS.\" The report states that the shoe had the
following percentage composition, by weight, of all components:

> Textile \-- 19 percent
>
> Rubber/Plastic \-- 32 percent
>
> Leather \-- 19 percent
>
> Paper \-- 18 percent
>
> Metal \-- 12 percent

After adding the percentages, by weight, of the rubber/plastic and
textile component materials (32 percent and 19 percent), Customs found
the shoe to be composed of over 50 percent by weight of rubber/plastics
and textile materials.

The protestant, through counsel, submits four analytical reports of
laboratory testing by Precision Testing Laboratories (PTL), each dated
May 27, 1998, performed to determine the percentage, by weight, of the
components of four separate sizes (6 through 9) of sample shoes
identified as \"Villager\" style \"Evelyn.\" There is no representation
in the protest or the PTL reports that any of the sample shoes had been
taken from the protested shipment at issue. The reported results
indicate that none of the four shoes tested was composed of over 50
percent by weight of textile materials and rubber or plastics. The
percentage weight of the rubber/plastics and textile material of the
four samples reportedly ranged from 42.33 percent to 44.24 percent.
Although \"Rubber\" was listed separately in the PTL reports, the
percentage of rubber is listed as \"0%\" for each of the four samples.
Adhesives are also listed separately in each report as
\"Misc.(Cement)\". For sample sizes 6 through 9, the percentage, by
weight, of the \"Misc.(Cement)\" component is listed as .14%, 0.0%,
.10%, and .03%, respectively.

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ISSUE:

Whether the independent laboratory's test results, which conflict with
those of the Customs laboratory, warrant classification of the
merchandise in subheading 6404.20.40, HTSUSA, as women's footwear
composed of not over 50 percent by weight of textile materials and
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.

Through counsel, the protestant essentially contends that the results of
Customs laboratory testing are invalid because only one shoe was
analyzed, because the precise methodology used to conduct the analysis
is not indicated in the laboratory report (which is said to be
\"handwritten\"), nor is the type of oven, its temperature, or the type
of \"conditioning\" to which the components were subjected prior to
weighing specified. Citing Headquarters Ruling Letter (HQ) 954769, dated
August 8, 1995, counsel further asserts that adhesives are generally not
classifiable as rubber or plastics, and that there is no indication that
Customs removed and separately weighed the adhesives as independent
component materials. Counsel maintains that if Customs allowed adhesives
to remain on the components when weighed, all of Customs weight data is
likely corrupted.

The \"handwritten laboratory report\" to which counsel refers appears to
be a worksheet of notes dated April 29, 1998. The notes were apparently
taken by a Customs laboratory analyst while testing the sample shoe and
gathering the facts to be included in the previously referenced
(typewritten) laboratory report no. 8-1998-10336-001, dated May 6, 1998.
Although the analyst\'s notes do not state the type of oven nor its
temperature, it is reported, in part, that the \"shoe was placed in an
oven to soften the glue then dismantled, conditioned, and weighed,\" and
that the \"conditioned weight\" of the components was measured at a
temperature of 71 degrees Fahrenheit and 64 percent humidity. Customs
scientists routinely perform these types of analysis, and the

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notation of standard laboratory practices on laboratory worksheets is
not required absent a variance from standard conditions. See HQ 957376,
dated August 13, 1996. In this case, we find no evidence that Customs
laboratory analysis was not performed in accordance with the U.S.
Customs Service Laboratory Methods for Footwear.

Since importers often complain when movement of their containers is
delayed for the taking and testing of samples, Customs will generally
take only one sample that is representative of all the shoes of a
particular style included in a shipment. The test results of a single
sample will generally not be applied indefinitely to ensuing shipments.
See HQ 083879, dated July 2, 1990, HQ 955719, dated February 7, 1995,
and HQ 957282, dated March 28, 1995. In this case, however, Customs
removed and tested one representative sample from the protested entry
and has applied those results to the same style of shoes in that entry.
Counsel does not claim that the sample shoes tested by PTL in May 1998
were taken from the protested shipment entered in November 1997, yet
maintains that the PTL test results should override Customs
classification determination.

We next address counsel\'s assertions that Customs should have removed
and separately weighed any adhesives, and considered them to be
component materials other than rubber or plastics. Generally, Customs
laboratory analysts will separate (by physical or chemical means)
adhesives which can be separated from the footwear components to which
they are attached. Customs generally will not, however, consider the
percentage weights of such adhesives to be component materials other
than rubber or plastics. As noted in the FACTS section, PTL\'s four
laboratory reports list adhesives separately as \"Misc.(Cement)\". Since
the percentage, by weight, of the \"Misc.(Cement)\" component of the
size 7 and size 9 shoes is listed as 0.0% and .03%, respectively, it
appears that PTL itself may not have removed and separately weighed the
adhesives. If such is the case, these materials were likely included by
PTL in the percentage weights of the components to which the adhesives
were attached, a procedure which counsel contends may corrupt the weight
data.

At issue in HQ 954769, dated August 8, 1995 (cited by counsel), was
Customs testing methodology used to determine the relative weights of
materials used to construct imported footwear. Counsel in that case
contended 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 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

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from the rubber/plastics 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]{.underline}" and "[plastics]{.underline}" 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, this
office stated:

...we are not persuaded that...the 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.

It was 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/plastics rather than as a separate material.

*Naftone, Inc. v. United States*, 74 Cust. Ct. 1, C.D. 4578 (1975),
examined 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 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.

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The cement at issue in *Naftone*, was a substance distinctly different
from the used adhesive imported as part of the footwear at issue here.
The principal constituent elements of prepared adhesives, cement, and
used adhesives, are rubber/plastics. 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 "Evelyn" 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...."

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. Customs cannot
exclude, disregard, or provide separate treatment for adhesives which,
by their application to footwear components prior to importation, have
become "used" adhesive materials of rubber and/or plastics. (See HQ
958608 and HQ 958987, both dated February 16, 2000). In light of the
above analysis, we find no basis upon which the test results obtained by
PTL should take precedence over the results of Customs laboratory
testing on a sample shoe taken from the shipment at issue. The lady's
shoe identified as "Evelyn" was properly classified in subheading
6404.20.60, HTSUSA, the classification assessed on the protested entry.

HOLDING:

The ladies\' high heel pump shoe identified by style name "Evelyn" 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 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

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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,

John Durant, Director

Commercial Rulings Division