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NY H86458




January 14, 2002

CLA-2-64:RR:NC:347:H86458

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.20

Mr. John Pellegrini
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219

RE: The tariff classification of footwear from China

Dear Mr. Pellegrini:

In your letter dated December 17, 2001, you requested a tariff classification ruling for a sample of footwear identified as Model 11892B on behalf of North Walk, Ltd.

You describe the merchandise which is the subject of this ruling request as a woman’s mid-calf cold weather boot with a rubber/plastic outsole. The upper is made of “vilon” a plastic material, and leather laminated to a man-made fiber fleece fabric. You state that the upper consists of three materials, rubber/plastic, leather and textile. However only rubber/plastic and textile is tactile and visible on the external surface of the boot’s upper. You contend that the boot has an upper of leather and the textile material should be viewed as accessory or reinforcement per Note 4(a), Chapter 64, Harmonized tariff Schedule of the United States (HTS). This contention is based upon your interpretation of Hi-Tech Sports USA v. United States; Slip-Op 96-139 dated August 16, 1996. In that decision, leather overlays atop a textile upper were considered external surface area of the upper by the court because they were lasted under and cemented to the outer sole thereby contributing structural strength to the shoe. You state that since the “flannel overlays” on the subject footwear are not lasted and do not contribute to the structural integrity of the upper, they are not considered part of the external surface area of the upper.

In general, the external surface area of the upper (ESAU) for footwear classification is 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. In addition, factors such as visibility, material plausibility, completeness and structure are evaluated for ESAU determinations when footwear uppers consist of multiple materials. It is the opinion of this office that the external textile material imparts the ESAU for Model 11892B in terms of visibility, plausibility, completeness and structure. Textile and rubber/plastic are the only materials visible on the surface of the upper. The leather backing for the textile material is not visible anywhere on the surface of the upper. The textile is also not like the examples of accessories and reinforcements mentioned in Note 4 (a), Chapter 64 HTS. Since the textile material is the constituent material having the greatest external surface area of the upper for Model 11892B, classification for the boot is appropriate in subheading 6404 HTS.

The applicable subheading for the model 11892B will be 6404.19.20 (HTS), which provides for footwear with outer soles of rubber/plastics and uppers of textile, footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. The general rate of duty will be 37.5 percent ad valorem.

The submitted sample is not marked with the country of origin. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

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.

Sincerely,

Robert B. Swierupski
Director,

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