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HQ 087842


November 30, 1990

CLA-2 CO:R:C:G 087842 KWM

CATEGORY: CLASSIFICATION

TARIFF: 6403.19; 6404.11.90

Ms. Pamela Jo Waddell
Barnhart & Associates
10914 S. La Cienega Boulevard
Inglewood, California 90304

RE: Snowboard ski boot; footwear; sports footwear; ski boot; upper of textile material; upper less than 50 percent leather; Upper of leather; outer sole of plastics.

Dear Ms. Waddell:

This will acknowledge receipt of your letter dated July 31, 1990, regarding the tariff classification of boots for snowboard skiing. Your letter and a sample of the goods have been forwarded to this office for a ruling. After consideration of the information and samples provided, we have determined that the boots should be classified as set forth below.

FACTS:

You requested a classification ruling for two styles of boots, both for use with a snowboard ski. They are referred to as the "Alpine" and "Flight" models. Both styles consist of two parts: a removable inner liner and an outer shell. Although your letter did not state that such was the case, we assume for the purposes of this ruling that the liner and outer shell will be imported as a retail unit. We consider the liner to be part of a set with the shell, which will provide classification for the merchandise as a whole.

The "Alpine" shell consists of two primary materials: textile and plastics. The foot portion is made entirely of molded plastic, as is the outer sole. The upper portion of the shell is made of a thick plastic layer to which a white woven fabric lining and a black woven fabric outer layer are laminated. The tongue of the shell is plastic, as are the trim and decorative overlay pieces.

The "Flight" shell is similar in most respects except that the uppers are made of leather, rather than a textile/plastics combination. The outer sole, trim and tongue pieces appear identical. The liner also appears to be identical in both styles of boot.

ISSUE:

How are these goods classified under the Harmonized Tariff Schedule of the United States Annotated?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relevant Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may be applied, taken in order.

The headings of Chapter 64 provide for the classification of footwear. The provisions of each heading are distinguished by the component material which comprises the outer sole and/or the upper. The outer soles of both styles are, as stated, of plastics. The uppers of the Flight model are clearly of leather. Classification of the Alpine model depends on whether or not the plastics and textile uppers of these boots are considered textile materials. We believe that they are. Our decision is based on the information you provided, and an examination which indicates that the surface of the uppers is primarily textile material according to Legal Note 4(a) to Chapter 64 (no account being taken of ornamentation, etc.). This finding is subject to verification by the port of entry. Below, we address first the classification of the Alpine model before turning to the Flight style.

Alpine model

In reviewing the headings eligible for classification, we note the terms of heading 6404, HTSUSA:

6404 Footwear with outer soles of rubber. plastics. leather or composition leather and uppers of textile materials:

Footwear with outer soles of rubber or plastics:

These would appear to include the Alpine boots. Within this heading, subheading 6404.11, HTSUSA, provides for:

6404.11 Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like:

The term "sports footwear" is defined in Subheading Legal Note 1 to Chapter 64, HTSUSA, as:

1. For the purposes of subheading 6402.11, 6402.19, 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.

(Emphasis added). Further, Additional U.S. Legal Note 2 provides that:

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 note 1 above), whether or not principally used for such athletic games or purposes.

(Emphasis added). The provisions of the subheading read in conjunction with the Legal Notes, as prescribed by GRI 1, clearly indicate that the instant merchandise is encompassed by the subheading terms regardless of whether we consider them "ski-boots" "sports footwear" or "athletic footwear other than sports footwear." That intent is obvious from a reading of the tariff provisions. The instant merchandise is a type of footwear, and snowboarding (or snowboard skiing) is as much a sport (or athletic activity) as the other activities specified in the subheading and legal notes. Further, the notes make clear that, at least for "athletic footwear", the item need not be used principally for such athletic purposes. It is sufficient, as in this case, that the boots possess attributes which indicate their suitability for a sport or athletic activity: a stiff sole, textile laminated plastic uppers, and an insulated liner. Some features indicate a design for sporting activity, and serve to distinguish the sample boots from ordinary insulated winter boots. Other features are more common.

Footwear with less than 50 percent exterior surface of leather is classified in the "other" provisions of 6404.11, HTSUSA. This subheading is further divided based on the value per pair. The instant goods described as the "Alpine" style have less than 50 percent exterior surface of leather, and are valued at over $12.00 per pair, as provided for in subheading 6404.11.90, HTSUSA.

Flight model

In reviewing the headings eligible for classification of the second sample, we note the terms of heading 6403, HTSUSA:

6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather:

The uppers on the "Flight" model are clearly leather and the outer soles are plastic. The above heading would appear to provide for the this item. Subheading 6403.11, HTSUSA, further provides for:

Sports footwear:
6403.11 Ski-boots and cross-country ski footwear:

6403.19 Other:

Classification in these subheadings requires specific determinations: are the boots "sports" footwear as described by the legal notes? If so, are they considered "ski-boots"? If not, the boots will be classified elsewhere in heading 6403, HTSUSA.

We find that the boots in this case are considered "sports" footwear for classification purposes, but are not "ski-boots" as contemplated by the nomenclature.

The nomenclature and legal notes contemplate a distinction between sports and athletic footwear ("other than sports footwear"). In the case of the Alpine boots, that distinction did not impact on classification under the terms of heading 6404, HTSUSA. For the Flight boots, under heading 6403, HTSUSA, it becomes an issue.

To determine whether the Flight boots are "sports" footwear, we look subheading legal note 1 to Chapter 64 which outlines the features found on sports footwear. Note 1 provides first that the item should be designed for a sporting activity and that such footwear have or have provision for the attachment cleats, spikes, or the like. In addition, the note sets out a list of footwear that would be classified as sports footwear. We believe that the list is neither exclusive, nor intended to merely provide examples of the footwear described in the first part of the note. Numerous types of sports footwear may fit the description of the note (for example baseball cleats or track spikes) but are not listed. In addition, not all of the examples have attachments or provision for attachment of spikes, cleats, etc (wrestling boots, boxing boots).

If footwear is designed for a specific sporting activity, if it is not well suited for general athletic purposes (as "athletic footwear" would be), and if it is used primarily for the specific activity for which it is designed, then we are of the opinion that it should be classified as sports footwear. In this case, special design is evidenced by the attributes we noted above, many of which also indicate that the boots are not susceptible to general cold weather outdoor use. For example the rigid sole may aid in the control of the snowboard, but makes walking and casual wear unlikely. We believe that these boots will be used primarily for snowboarding.

Lastly, we do not find that boots such as these are "ski- boots." Following the above reasoning, the boots here do not exhibit the design features found on either downhill or cross- country ski-boots. They do not have heel and toe projections required for insertion into quick release bindings on downhill skis. They are lighter and much more flexible across the arch than downhill ski boots. However, they do not possess the flexibility necessary for telemarking or cross-country skiing. While the term "ski-boot" cannot be defined too rigidly, and tariff terms may properly include newly developed variants of traditional articles, we find that the boots at issue here are too dissimilar to be classified under the provision for ski boots.

Subheading 6403.19, HTSUSA, provides for sports footwear, other. Because your letter did not indicate whether the boots are for "men, youth or boys", we cannot provide an exact classification ruling. The boots will however be classified in provision under subheading 6403.19, HTSUSA.

HOLDING:

The boots described as the Alpine style are classified in subheading 6404.11.90, HTSUSA, as foot wear with outer soles of
plastics and uppers of textile materials, sports footwear, valued over $12 per pair. They are dutiable at the rate of 20 percent ad valorem.

The boots described as the Flight style are classified in subheading 6403.19, HTSUSA, as footwear with outer soles of plastics and uppers of leather, other sports footwear. The duty rate on these goods is dependent on whether they are designed for use by men, youths and boys or by other individuals.

Sincerely,

John A. Durant
Director
Commercial Rulings Division

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