CLA-2-64:OT:RR:NC:N2:247
Mr. David R. Ostheimer
Lamb & Lerch
140 West End Avenue
New York, NY 10025
RE: The tariff classification of footwear from China
Dear Mr. Ostheimer:
In your letters dated December 29, 2020, and February 2, 2021, you requested a tariff classification ruling on behalf of your client Drew Ventures, Inc. You have submitted descriptive literature, photographs and marketing materials for 5 styles of footwear. Samples were not provided.
The photograph of style Rockford 40808 shows a man’s, closed toe/closed heel, above-the-ankle, lace-up boot. The upper of the boot is predominantly leather material. The boot is constructed using DuPont Thermolite® with a Waterproof Membrane Lining. Therefore, it is considered to be “protective.” It can accommodate orthotic inserts. The thick rubber/plastic lug outer sole, contains a metal shank and is oil, slip, and marking resistant.
Style Tucson 40678 is a man’s closed toe/closed heel, above-the-ankle boot. The upper of the boot is predominantly leather material and features a padded tongue and collar. The shoe features laces and heel stabilizers. It can accommodate removable and orthotic insoles. The rubber/plastic outer sole has a steel shank.
The photograph of style 40893 Aaron shows a man’s, closed toe/closed heel, below-the-ankle athletic style shoe. The lightweight outer soles are made of rubber or plastics and contain a fiber shank. As stated, the external surface area of the upper is majority leather material. The shoe features laces, a cushioned heel, removable insoles, and can accommodate an orthotic insert.
The applicable subheading for the styles Rockford 40808 and Tucson 40678 will be 6403.91.6075, HTSUS, which provides for Footwear with outer soles of rubber, plastics, leather, or composition leather and uppers of leather: other footwear: covering the ankle: other: other: for men, youths and boys: other: other: for men: other. The rate of duty will be 8.5 percent ad valorem.
The applicable subheading for the Aaron style 40893 will be 6403.99.6075, HTSUS, which provides for Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: other footwear: other: other: other: other: for men, youths and boys: other: other: for men: other. The rate of duty will be 8.5 percent ad valorem.
The photograph of style Tulip 10202 shows a woman’s, closed toe/closed heel shoe that does not cover the ankle. According to your letter, leather is the constituent material of the upper. The laced shoe is constructed with a heel stabilizers, a cushioned collar and removable insoles to accommodate orthotic inserts. The slip resistant outer sole is composed of rubber or plastics and contains a steel shank.
Style Rose 14375 is a closed toe/closed heel, below-the-ankle, woman’s shoe. The slip resistant and lightweight outer sole is composed of rubber or plastics and contains a steel shank. The external surface area of the upper is predominantly leather, with the balance of textile materials. A strap with a functional hook and loop closure is located at the ankle. The shoe features removable insoles.
For Style Rose 14375 you suggested a classification of 6402.99.3165, Harmonized Tariff Schedule of the United States (HTSUS), the provision for footwear with uppers and outer soles of rubber or plastics. As this style has an upper of predominantly leather on the external surface, it will be classified accordingly.
The applicable subheading for the Tulip style 10202 and Rose 14375 will be 6403.99.9065, HTSUS, which provides for Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: other footwear: other: other: other: other: for other persons: valued over $2.50 /pair: other: other: for women: other. The rate of duty will be 10 percent ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheadings, 6403.91.6075, 6403.99.6075, and 6403.99.9065, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheadings, 6403.91.6075, 6403.99.6075, and 6403.99.9065, HTSUS, listed above. The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
You suggest these styles of footwear are eligible for classification under subheading 9817.00.96 Harmonized Tariff Schedule of the United States (HTSUS). Subheading 9817.00.96, HTSUS, specifically provides for articles that are specially designed for the use, or benefit of, physically or mentally handicapped persons other than the blind. The language of the heading under which subheading 9817.00.96 appears requires that articles classifiable thereunder must be “specially designed or adapted” for the benefit of mentally or physically handicapped persons.
In Treasury Decision (TD) 92-77 (26 Cust. Bull. 1, (August 26, 1992)), Customs and Border Protection (CBP) addressed the implementation of the duty-free provisions of the Nairobi Protocol, and discussed the eligibility requirements for duty-free treatment. With regard to whether an article has been “specially designed or adapted” for the handicapped, CBP stated the following:
A primary factor to be considered concerns the physical properties of the article itself, i.e., whether the article is easily distinguishable, by properties of design and the corresponding use specific to this unique design from articles useful to non-handicapped individuals. If an article is solely dedicated to use by the handicapped, e.g. pacemakers or hearing aids, then this is conclusive evidence that the articles are “specially designed or adapted” for the handicapped for purposes of the Nairobi Protocol. Thus, if an article is solely dedicated to use by the handicapped, it is CBP’s position that this would be conclusive evidence that the item is “specifically designed or adapted” for the handicapped for purposes of the Nairobi Protocol.
According to the submissions received, the footwear is mass-produced in a full range of sizes in retail establishments. The general public can benefit from footwear that can accommodate swollen feet or those in need of orthotic inserts. The imported footwear is not designed to cure any physical abnormalities or conditions. In its imported condition, the footwear is not designed for use by a specific person, or with any extraordinary construction features not suitable to the general public.
In this regard, when we compare the footwear at issue, to the footwear being sold at retail to the general public, we are unable to distinguish them from ordinary footwear. They are not “specifically designed or adapted” for the handicapped. Accordingly, these footwear styles are not classifiable in subheading 9817.00.96.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
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 Stacey Kalkines at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division