CLA-2 CO:R:C:M 955224 DFC

John B. Pellegrini, Esq.
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Footwear, protective; Athletic footwear; Off-Road footwear; T.D. 92-32; HRL 953882 Dear Mr. Pellegrini:

In a letter dated October 14, 1993, on behalf of AVIA Group International, Inc., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of footwear which is expected to be produced in Korea. A pre-production sample was submitted for examination.

FACTS:

The sample has not been assigned either a model number or model name. This footwear is a man's over-the-ankle shoe with an upper of textile with leather overlays, and a unit-molded bottom of rubber/plastic. The unit-molded bottom, which contains a sole pattern of raised ridges and "nipples," and the AVIA trade name, overlaps the upper by one-quarter inch or more around most of the perimeter of the shoe and constitutes a foxing-like band. You advised us that the unit-molded bottom on the footwear which will actually be imported will not have a clearly defined arch as appears on the sample. The leather overlays, which are accessories or reinforcements, cover more than 50% the external surface area of the upper. The textile material which makes up the external surface area of the upper is a man-made fiber sold under the trade name "DARLEXX". The fabric is stretchable, waterproof, windproof and breathable.

You claim that this footwear is similar to off-road footwear and is properly classifiable under subheading 6404.11.20, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials, footwear with outer soles of rubber or plastics, sports footwear, tennis shoes, basketball shoes, gym shoes, training shoes and the like, having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather.

ISSUE:

Is this type of footwear considered "athletic footwear" for purposes of classification under subheading 6404.11.20, HTSUS?

LAW AND ANALYSIS:

The term "tennis shoes, basketball shoes, gym shoes, training shoes and the like" appearing in subheading 6404.11, HTSUS, is defined by Additional U.S. Note 2 to Chapter 64, HTSUS, as follows:

2. For the purposes of this chapter, the term "tennis shoes, basketball shoes, gym shoes, training shoes and the like" covers athletic footwear other than sports footwear (as defined in subheading note 1 above) whether or not principally used for such athletic games or purposes.

In Headquarters Ruling Letter (HRL) 953882 dated September 24, 1993, Customs considered the issue of whether certain hiking boots are classifiable as athletic footwear. It was claimed by the inquirer that classification as athletic footwear would be appropriate because the subject hiking boots shared many of the characteristics of training shoes. Customs rejected this claim noting that training shoes and the hiking boots have the following conspicuous differences:

1. a "heel" stabilizer on the "in" side of the foot which extends past the mid point of the shoe;

2. stitched and cemented on, molded rubber heel and toe bumpers;

3. outersoles which are considerably heavier and stiffer (although substantially less so than the usual hiker) and which have a quite different design and spacing for the "studs;" and

4. uppers which cover the ankle.

Further, in T.D. 92-32 (16 Cust. Bull. & Dec. No.16 at 4), responding to the claim of importers that the hiking/backpacking boot is classifiable as athletic footwear, Customs stated at page 18 the following:

In this instance the hiking/backpacking boot, although used in the sport of backpacking, fails to qualify as athletic footwear within subheading 6404.11 because it is not "like" tennis shoes, basketball shoes, gym shoes, and training shoes. Specifically, hiking boots are heavier than the listed exemplars of athletic footwear. This slows the wearer's running speed substantially. All the exemplars are used in sports which require fast footwork or extensive running. Additionally, the exemplars are not constructed so as to protect the foot against rough and rocky terrain as are hiking boots. For these reasons we conclude that the hiking/backpacking boot is not classifiable under subheading 6404.11, as claimed.

Following the criteria set forth in T.D. 92-32 and HRL 953882, you present the following reasons in support of your claim that the instant footwear is classifiable as athletic footwear:

1. The footwear is constructed along the same general lines as athletic footwear. The only real difference is the outersole which is somewhat heavier than some, but not all, jogging shoes. It is no less flexible, however. Also, the upper material is waterproof. These differences are not significant and certainly do not preclude classification as athletic footwear.

2 The footwear is lightweight; it is not heavier than athletic footwear. Its weight will be approximately 13 ounces (men's size 9). This is consistent with the weight of athletic footwear. Tennis shoes, basketball shoes, running shoes and cross-training shoes have weights in this range.

3. The subject footwear is designed for use in activities which require fast footwork and extensive running, specifically scrambling and trial running, although it will be useful in other sports such as mountain biking, hiking and light backpacking.

4. The subject footwear does not exhibit three of the four characteristics cited in HRL 953882 as "conspicuous differences from training shoes." The subject footwear does not have a heel stabilizer which extends past the mid-point of the shoe. The subject footwear does not have stitched-on and cemented-on rubber heel and toe bumpers. The outersoles of the subject footwear are not considerably heavier or stiffer than those typical of training shoes.

5. The subject footwear does exhibit the fourth criteria, uppers which extend above the ankle. This is not a significant difference from athletic footwear. It is a fact that aerobic, crosstraining, basketball and tennis shoes are sold in models which cover the ankle. Accordingly, the fact that the subject footwear has uppers which cover the ankle does not disqualify it from classification as athletic footwear since many exemplars of athletic footwear have uppers which cover the ankle. It is our observation that the subject footwear, despite several similarities to a hiking boot, is not a hiking boot. However, the question arises as to whether the instant footwear is too different from tennis, basketball, gym or training shoes, to be included as "like" them. These differences are listed as follows:

The material of the sample's upper is "waterproof" and "windproof;" unheard of characteristics for traditional tennis, basketball and gym (TBG) shoes and an extreme rarity for training shoes. However, it is an ordinary feature for protective footwear and many hiking boots.

The "nippled" outer sole of the sample is completely unlike the sole pattern for TGB shoes and most training shoes, and still quite distinct from the closest training shoe patterns. Similar patterns are seen on hiking boots.

The high-top is not unusual for basketball shoes, but it is not a characteristic of traditional training shoes.

It is our opinion that the differences listed above are not so substantial as to preclude the footwear in issue from being considered as "like" tennis, basketball, gym or training shoes. HOLDING:

Footwear represented by the sample with a modified unit- molded bottom is dutiable at the rate of 10.5% ad valorem under subheading 6404.11.20, HTSUS.


Sincerely,


John Durant, Director
Commercial Rulings Division