CLA-2-64:RR:NC:TA:347 D81064
TARIFF NO. 6404:11.90
Mr. John B. Pellegrini
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219
RE: The tariff classification of footwear.
Dear Mr. Pellegrini:
In your letter dated July 23, 1998 you requested a
classification ruling on behalf of your client, Timberland
Company for their "Dunewalkers" series, styles 87043, 87047,
87048 and 87049. You have provided a sample of a shoe which you
identify as style 87047. You state that the styles are identical
but for color.
You describe the footwear as a man's six-eyelet oxford with
a textile upper and a rubber/plastic cup outsole. The outsole
overlaps the upper around the entire circumference of the shoe.
The outsole is attached to the upper by cementing and by
stitching the toe and heel areas. Your inquiry concerns whether
or not this type of shoe is considered "tennis shoes, basketball
shoes, gym shoes, training shoes and the like" as defined in
Additional U.S. Note 2, Chapter 64, Harmonized Tariff Schedule of
the United States, (HTS).
As you state, Additional U.S. Note 2, Chapter 64 (HTS),
defines the term "tennis shoes, basketball shoes, gym shoes,
training shoes and the like" as athletic footwear other than
sports footwear (as defined in subheading note 1 to Chapter 64
(HTS)), whether or not principally used for such athletic games
or purposes.
As you further state, previous Customs rulings have
attempted to distinguish athletic footwear by the presence of
physical characteristics typical of tennis shoes, basketball
shoes, gym shoes and training shoes. In HQ 953882 dated
September 24, 1993, Customs rejected the contention that certain
hiking boots are classifiable as athletic footwear, citing
certain conspicuous differences between hiking boots and athletic
footwear and the like. Specifically, the hikers featured:
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.
In T.D. 92-32 (16 Cust. Bull. & Dec. 4), Customs ruled that
a hiking/backpacking boot failed to qualify as "athletic
footwear." Specifically, the hiking/backpacking boot is not
"like" tennis shoes, basketball shoes, gym shoes and training
shoes as they 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. In HQ 955224 dated March 25, 1994, Customs
agreed that certain off-road protective footwear qualified as
"athletic footwear." Among the reasons presented supporting
classification as "athletic footwear" was:
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.
2. The footwear is light; it is not heavier than athletic
footwear. It is consistent with the weight of athletic
footwear.
3. The footwear is designed for use in activities which
require fast footwork and extensive running.
Aside from the physical appearance, the identification of
basketball shoes, tennis shoes, (i.e. court shoes) gym shoes and
training shoes is generally dependent upon (but not limited to),
the presence of certain construction features incorporated into
the shoes. These features include special arch supports, shock
absorbers, lateral stabilizers and special traction soles. No
such readily discernable features are evident in the type of
hybrid casual/athletic "athleisure" shoes which are the subject
of this ruling request. The only characteristics consistently
evident in the cited rulings which differentiate "athletic" from
other types of footwear in addition to materials and appearance,
is the weight of the shoe and the relative flexibility of the
outer sole enabling the wearer to participate in activities
requiring fast footwork and running. These factors must be
examined and applied to this type of athletic/casual wear
footwear. These shoes are certainly lightweight and flexible
enough to be used in athletic activities, whether or not they are
principally used for such athletic games or purposes. They are
constructed along the same general lines as athletic shoes,
possessing a light weight canvas upper secured by a lace tie
closure. They have a light weight, flexible athletic like rubber
or plastic outer sole which overlaps the upper and is a foxing or
foxing-like band similar to those found on many athletic court
and training shoes. This type of sole provides the necessary
traction and stability to participate competitively in athletic
endeavors. These shoes are not unusual for wear while
participating in athletic activities. The literature provided
emphasizes the shoe's dependable long wear, describing them as
lightweight and flexible.
The applicable subheading for "Dunewalkers" styles 87043,
87047, 87048 and 87049 will be 6404.11.90, Harmonized Tariff
Schedule of the United States, (HTS) which provides for footwear
with outer soles of rubber or plastics and uppers of textile
materials, which are athletic, valued over $12/pair. The rate
of duty will be 20 percent ad valorem.
The submitted sample is not marked with the country of
origin. Therefore, if imported as is, will not meet the country
of origin marking requirements of 19 U.S.C. 1304. Accordingly,
the footwear would be considered not legally marked under the
provisions of 19 C.F.R. 134.11 which states, "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 container) will
permit, in such 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 this ruling letter 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 this ruling, contact National Import Specialist,
Richard Foley at (212) 466-5890.
Sincerely,
Robert Swierupski
Director,
National Commodity
Specialist Division