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NY L87620

September 28, 2005

CLA-2-64:RR:NC:SP:247 L87620


TARIFF NO.: 6402.91.90

Mr. W.J. Gonzalez
Trans-Union Customs Service, Inc.
11941 S. Prairie Avenue
Hawthorne, CA 90250

RE: The tariff classification of footwear from Italy and Romania.

Dear Mr. Gonzalez:

In your letter dated September 2, 2005, on behalf of Intersport Fashions West, Inc. DBA: Fairchild Sports, Inc., you requested a tariff classification ruling for two half pair samples of motorcycle boots.

Style Oxtar Smart (9100), made in Italy, is a ruggedly constructed motorcycle boot with an upper that covers the ankle and that is constructed of functionally sewn and cemented together rubber/plastic, leather and textile external surface area upper (ESAU) component materials. Style Oxtar Super Motard (9800), made in Romania, is also a rugged and strongly constructed motorcycle boot that has an upper consisting of sewn and cemented together rubber/plastics, leather and metal external surface area upper component materials.

In your letter you ask that in measuring the external surface area of the upper (ESAU) of both these boots, should all the materials that are seen on the external surface be counted or should some rubber/plastics portions, which you identify as “patches” and protective reinforcements, be excluded and only the underlying covered “leather” materials be counted as ESAU instead.

Slip-op 96-139 decided August 16, 1996, HI-Tech Sports, USA, V. United States has significantly altered the Customs approach to external surface area of the upper (ESAU) and accessories and reinforcements determinations. Whereas prior to this decision, we focused on visibility, completeness and plausibility of materials to determine ESAU, we now must also take into account “structural integrity,” material components contribution of strength and durability, and the manner of construction.

Like the leather portion of the HI-Tech boots that the court found to be ESAU, we find that most of the rubber/plastics materials that comprise much of the external surface portions of both these boot uppers do contribute support, rigidity and strength. The rubber/plastics material overlays that account for large external surface area sections of the upper at the sides of the toes, the instep and all around the sides of the heel and at the back, are all securely sewn and lasted under or onto the midsoles of the boot and definitely contribute to the strength and structure of both these boots. Based on your submitted independent laboratory report findings that the ESAU of both these boots, excluding accessories and reinforcements, is well over 50% rubber/plastics, (percentages total approximately 68% rubber/plastics and 32% leather) the boots will both be classified as having an upper that is predominately of rubber/plastics. Both these boots also have rubber/plastic outer soles and you state that both these boot styles will be valued at over $12 per pair.

The applicable subheading for the two boots, identified as Style Oxtar Smart (9100) and Style Oxtar Super Motard (9800), will be 6402.91.90, Harmonized Tariff Schedule of the United States (HTS), which provides for footwear, in which both the upper’s and outer sole’s external surface is predominately rubber and/or plastics; which is not “sports footwear”; which covers the ankle; in which the upper’s external surface area does not measure over 90% rubber or plastics (including any accessories or reinforcements); which is not designed to be a protection against water, oil, or cold or inclement weather; and which is valued over $12.00 per pair. The rate of duty will be 20% ad valorem.

We are returning the samples as you requested.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 646-733-3042.


Robert B. Swierupski

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