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HQ H015088




October 29, 2007

CLA-2 OT:RR:CTF:TCM H015088 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.9020

Robert Silverman, Esq.
Eric Smithweiss, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 339 Park Avenue
25th Floor
New York, NY 10022

RE: Classification of the Tech 8 Motorcycle Boot (Model No. 201106)

Dear Mr. Silverman and Mr. Smithweiss:

This is in response to your letter dated June 21, 2007, to United States Customs and Border Protection (CBP) in New York, in which you requested a binding ruling on behalf of your clients Alpinestars, S.p.A. (Alpinestars), pertaining to classification of the Tech 8 Motorcycle Boot (Tech 8), Model number 201106, under the Harmonized Tariff Schedule of the United States (HTSUS). The letter was referred to this office for a response. On September 12, 2007, a supplemental memorandum was sent to this office. In reaching our decision, we also considered the information you provided in a meeting on October 22, 2007 and a second supplemental memorandum sent on October 26, 2007.

FACTS:

The subject merchandise, the Tech 8, is specifically designed for use during the most competitive versions of motocross racing. The black and white boot reaches the wearer’s mid-calf. The outer sole is comprised of rubber/plastic, a closed metal tipped toe, closed heel and buckle closures.

The upper of the boot is constructed of leather, molded plastic and synthetic leather (pliable plastic). According to your letter, the leather used to construct the lower portion of the upper is over 2mm in thickness and is reinforced with a durable sheet of plastic combined with a non-woven textile and a layer of foam. The leather used in the shaft portion of the upper is just under 2mm in thickness and is reinforced with the sheet of plastic and non-woven textile. The molded plastic completes the medial side of the boot and covers most of the toe area. The remaining molded plastic pieces overlay the existing leather upper. The leather and plastic components are not lasted under or cemented to the outer sole, but are instead flanged outwards and attached to the top surface of the outer sole. The overlays are identified as follows:

The molded plastic buckle receiver holder on the lateral quarter; The molded plastic rear buckle on the lateral heel/quarter; The plastic buckle tabs;
The metal heel protector;
The molded plastic component directly above the metal heel protector; and The molded plastic strip (calf protector) running vertically down the back of the boot shaft containing the “Alpinestars” logo.

Counsel for Alpinestars argues that the primary function of these pieces is to anchor the buckle closures.

ISSUE:

Whether the leather or the molded plastic overlays predominate as the constituent material with the greatest external surface area of the upper (ESAU)?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:

6402 Other footwear with outer soles and uppers of rubber or plastics: Other footwear:
6402.91 Covering the ankle
Other:
Other:
Other:
6402.91.90 Valued over $12/pair.
6402.91.9020 Other

6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear:
6403.91 Covering the ankle:
Other:
Other:
6403.91.60 For men, youths and boys.
Other:
Other:
For Men:
6403.91.6075 Other

In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Chapter 64, note 4 (a) provides:

4. Subject to note 3 to this chapter:

(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments; (Emphasis added)

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Generally, footwear of chapter 64 is classifiable according to the constituent material of either the upper or the outer sole. In the present matter, there is no dispute that the outer sole is composed of rubber/plastic. At issue is which material comprises the constituent material with the greatest external surface area of the upper – the ESAU. According to note 4(a), “the material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements.” In order to arrive at the appropriate heading, accessories and reinforcements are not taken into account. Once all accessories or reinforcements are removed, the constituent material having the greatest percentage of the ESAU will determine the appropriate heading.

CBP’s interpretation of note 4(a) was impacted by the Court of International Trade’s decision in Hi-Tech Sports v. United States, 20 CIT 1046 (1996). In that case, the CIT addressed the issue of accessories or reinforcements as it pertains to footwear uppers. The court stated, in pertinent part:

Given the style and manner of construction of the boots at issue, if they were constructed without leather they would lack sufficient support, rigidity or strength for their intended use.

The leather portion of the Hi-Tech bootsserves a greater function than just as a reinforcementand is, in fact, an essential structural portion of the boots. Accordingly, that leather portion isnot an accessory or reinforcement. (Emphasis added)

In light of the Hi-Tech decision, CBP determines materials that are ESAU based on whether they are visible on the surface of the upper, are a plausible upper material and, most importantly, whether they contribute to the structural strength of the article. At issue in the present matter is whether the plastic components contribute to the structural strength or structural integrity of the boot or whether they are merely accessories or reinforcements. In other words, if the boots were constructed without the plastic upper components, we must determine whether they would they lack sufficient support, rigidity or strength for their intended use. See Headquarters Ruling Letter (HQ) 966915, dated April 21, 2004.

In applying the Hi-Tech decision, CBP has identified certain factors which assist in determining whether component materials are ESAU or accessories or reinforcements. In HQ 958570, dated February 4, 1997, CBP classified a men’s sports sandal with an upper consisting of plastics and textile material under heading 6402, HTSUS. In that ruling, CBP highlighted a number of factors which assisted in the determination that the plastics constituted the ESAU. These were:

The external plastic material was lasted under and attached to the foot bed; The external layer of plastics covered the majority of the outer surface of the upper; Components made from plastics were not similar to examples of accessories or reinforcements cited in note 4(a); and The external layer of plastics contributed to the structural strength of the sandal and provided support for the foot.

These factors are not exclusive and none is determinative. See also HQ 960019, dated April 10, 1997 and HQ 966589, dated February 24, 2004, (Relied on the criteria enumerated in HQ 958570 in evaluating the ESAU of certain footwear); and HQ 960788, dated December 8, 2000, (Rubber counters cemented to a shoe’s outsole and overlapping the upper were accessories or reinforcements because the rubber counters only reinforced the joint between the upper and the sole but did not provide support).

In the present matter, counsel argues that the constituent material of the ESAU is leather and that the molded plastic overlays are accessories or reinforcements because they do not provide structural support. Accordingly, the Tech 8 should be classified under heading 6403, HTSUS, as “footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather.” This office disagrees with counsel’s assessment. Applying the factors identified by CBP in HQ 958570 and the Hi-Tech decision, we find that the plastic overlays attached to the Tech 8’s upper are not mere accessories or reinforcements. Although they are not lasted under the foot bed, they are attached to the rubber/plastic sole. In addition, although the plastic overlays do not comprise a majority of the outer surface area of the upper, they do cover a large percentage of the overall outer surface area.

Furthermore, the majority of the components made from plastics are not similar to examples of accessories or reinforcements cited in note 4(a). In the October 22nd meeting and the October 26th submission, counsel stated molded plastic rear buckle (component 2) is an ankle patch “as the term is commonly understood by the footwear industry.” See Supplemental Memorandum, dated October 26th, page 2. According to counsel, the term “ankle patch” is designed as an “additional piece of material placed on a shoe to provide strength or protection.” Id. Counsel also argues that the front buckle holder (component 1) and the calf protector (component 6) are similar to ankle patches and therefore fall within the scope of note 4(a). This office disagrees with counsel’s assertion that the calf protector (component 6) is similar to an ankle patch. As discussed below, this component serves as more than minor reinforcement. It provides the necessary protection from the dangers associated with the most highly competitive levels of motocross racing. Furthermore, counsel has provided no evidence that component 1, the front buckle holder, is similar to
an ankle attachment. With the exception of component 2, the molded plastic rear buckle, the plastic overlays attached to the Tech 8 boot are not similar to the accessories or reinforcements named in note 4 (a).

Finally, these overlays contribute to the structural strength of the boot and will provide the necessary rigidity and strength to protect the wearer’s foot. In the October 22nd meeting, counsel argued that the leather underlayer alone constitutes a fully functioning boot which provides adequate support for the less competitive versions of motocross racing. These races pose a minimal risk to the rider. We note that the Tech 8 is not manufactured for use during these less competitive races.

In the most competitive versions of motocross racing, however, these plastic overlays are added to protect the riders from injury. For instance, in such races, the motorcycle’s metal pedals are filed down so that they are extremely sharp and provide traction for the boot’s rubber sole. Without a molded plastic calf protector which runs down the back of the boot shaft (labeled as overlay number 6 on the Tech 8), these metal pedals may pierce through the leather and injure the rider’s leg. Counsel argues that because motocross boots may be worn without the plastic overlays, the added plastic overlays are mere accessories or reinforcements.

Counsel’s argument overlooks the Hi-Tech court’s instruction that we consider footwear in light of its “intended use.” Although the leather boots are suitable for use in the lower impact races, they are less suited for the most competitive races. The subject Tech 8 is specifically adapted for use in the more competitive races. This adaptation includes the addition of plastic overlays which provide important strength, rigidity and durability to both the boot and the rider. Without the added overlays, the riders would risk injury and would not be fully protected from the dangers associated with competitive motocross racing

The Supplemental memorandum, dated October 26th, confirms this assertion. In that memorandum, counsel states that “the rider would have less protection from injury without these [plastic] components.” Page 1.. In other words, if the boots were “constructed without the [plastic overlays,] they would lack sufficient support, rigidity or strength for their intended use.”

During the October 22nd meeting, counsel also provided a number of samples alleged to be those considered by CBP for two different administrative rulings. Although these boots appear similar in construction to the subject Tech 8, we are unable to verify that they are the same boots relied upon for the rulings counsel identified. As a result, we are unable to consider them in the present matter.

HOLDING:

The Tech 8 is classifiable under heading 6402, HTSUS. Specifically, it is classifiable under subheading 6402.91.9020, HTSUSA, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $12 per pair.” The general, column one rate of duty is 20 percent ad valorem.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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