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NY K84869




April 8, 2004
CLA-2-64:RR:NC:SP:247 K84869

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.90

Mr. John J. Kenney
Reebok International Ltd
1895 J. W. Foster Boulevard
Canton, MA 02021

RE: The tariff classification of footwear from China and Taiwan.

Dear Mr. Kenney:

In your letter dated March 23, 2004 you requested a tariff classification ruling.

The submitted half pair shoe sample is identified as Reebok Style #117776, a men’s “Mid Cut” basketball shoe and called the “Answer II, SRF #04-021120H-TDC.” The shoe has an upper that covers the wearer’s ankle and an external surface area consisting of rubber/plastic, leather and textile component materials. In your letter you ask that in measuring the external surface area of the upper (ESAU) of this shoe, should all the materials that are seen and “sit” on the external surface be counted or should you consider some of the underlying covered materials to count 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 all the rubber/plastics materials that comprise much of the external surface portions of the subject shoe upper 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 instep and at the sides of the heel toward the back, are all lasted under the foot and contribute to the strength and structure of the shoe. Based on your submitted independent laboratory report findings that the ESAU of this shoe, excluding accessories and reinforcements, is 50.82% rubber/plastic, 46.92% leather and 2.26% textile, this shoe is classified as having an upper that is predominately rubber/plastics. This shoe also has a cemented-on rubber/plastic outer sole and you state that the shoe will be valued over $12 per pair.

The applicable subheading for the shoe, identified as the Reebok Style #117776, “Mid Cut” basketball shoe and called the “Answer II, SRF #04-021120H-TDC” 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.

Sincerely,

Robert B. Swierupski
Director,

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