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HQ 084139


June 13, 1989

CLA-2 CO:R:C:G 084139

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.70; 6402.91.80

Mr. Bill Thomas
Inventory Control Manager
Century Martial Art Supply, Inc.
1705 National Blvd.
Midwest City, Okla 73110

RE: Tariff classification of "Kick boot" made in Taiwan.

Dear Mr. Thomas:

Your letter addressed to our New York office concerning the tariff classification of a C-Boot has been referred to this office for a direct reply to you.

FACTS:

The C-Boot is worn on the foot and is sold in footwear sizes (at least in odd footwear sizes), and is sold and worn in pairs. The C-Boot covers all of the top and sides of the feet and about half of the bottoms of the feet. Also, the C-Boot is clearly specially designed, due to the "skid-resistant half sole", to provide traction for the feet which is a basic function of standard footwear, especially athletic footwear.

However, the C-Boot is advertised as "Protective Sparring Equipment" to be worn while training for martial arts or participating in kick-boxing tournaments. The padded upper provides protection to the kicker as well as the receiver of the blow. Any use of the C-Boot other than in kick-boxing or the martial arts would be fugitive.

The principal function of the C-Boot is akin to a boxing glove worn on the hands, but this article also performs the traditional footwear function of increasing traction.

ISSUE:

Whether the C-Boot is considered sport equipment or footwear for tariff purposes.

LAW AND ANALYSIS:

Legal Note 1(g) to Chapter 95, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which covers sport equipment, excludes "[s]ports footwear (other than skating boots with ice or roller skates attached) of chapter 64, or sports headgear of chapter 65."

Subheading Note 1 to Chapter 64, HTSUSA, reads as follows:

1. For the purposes of subheadings 6402.11, 6402.19, 6403.11, 6403.19 and 6404.11, the expression "sports footwear" applies only to:

(a) Footwear which is designed for a sporting activity and has, or has provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like;

(b) Skating boots, ski-boots and cross-country ski footwear, wrestling boots, boxing boots and cycling shoes.

It is clear that the C-Boot is not within the definition of "Sports Footwear" set forth above nor is it a "boxing boot" which is the designation for quite different, high-laced boots worn in the sport of Olympic boxing where the contestants throw punches with only their hands. The question to be decided is whether Legal Note 1(g) to Chapter 95 should be interpreted as being limited to the articles listed in Subheading Note 1 to Chapter 64.

It should be noted that the definition of "Sports Footwear" in Chapter 64 is a subheading note defining that term only for the purposes of 5 headings. It is not a chapter note. This is quite unusual in the Harmonized System (HS). It is our observation that the point of this is that there is footwear which is excluded from Chapter 95 as "Sports Footwear" and is included in Chapter 64, but is not "Sports Footwear" for the purposes of those 5 headings. It appears that the drafters of the HS wanted to be absolutely sure that the items covered by those 5 headings were unquestionably "Sports Footwear" and were willing to leave out some others in the process. For example, the ultra light racing shoes worn by marathon runners are used only in the sport of marathon/road racing (and, to a limited extent in training for it). However, they are clearly not "Sports Footwear" for the 5 headings, but it is even clearer that they are classified in Chapter 64.

It is our view that the same principle applies here even though the C-Boot is more unusual and even less capable of use outside its sport than the marathon racing shoe. .
It is not true that all sports related items that cover the foot are excluded from Chapter 95. For example, water skis (which usually have a rubber "foot stirrup" attached) are classifiable under subheading 9506.29.0020, HTSUSA; skating boots with skates permanently attached are classifiable under subheading 9506.70, HTSUSA; snowshoes are classifiable under subheading 9506.99.50, HTSUSA; and divers' flippers are also named in the Explanatory Notes as being covered by heading 9506, HTSUSA However, all these items derive their essential character from an element of the item which is separate and distinct from the portion which covers the foot. This is not the case with the C-Boot.

We note that the large elastic strap stitched to the upper covers considerably more than 10 percent of the external surface area of the upper. Consequently, the C-Boot is classifiable under subheading 6402.91.70, HTSUSA, as other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, other, other, valued over $3 but not over $6.50 per pair, or under 6402.91.80, HTSUSA, if valued over $6.50 but not over $12 per pair.

HOLDING:

The C-Boot, if valued over $3 but not over $6.50 per pair, is classifiable under subheading 6402.91.70, HTSUSA, with duty at the rate of 90 cents per pair plus 37.5 percent ad valorem.

The C-Boot, if valued over $6.50 but not over $12 per pair, is classifiable under subheading 6402.91.80, HTSUSA, with duty at the rate of 90 cents per pair plus 20 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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