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HQ 953882


September 24, 1993

CLA-2 CO:R:C:M 953882 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19; 6404.11.20

Peter Jay Baskin, Esq.
Sharretts, Paley, Carter & Blauvelt. P.C. Sixty-seven Broad Street
New York, N.Y. 10004

RE: Boots, hiking; Athletic footwear; T.D. 92-32; Additional U.S. Note 2 to Chapter 64

Dear Mr Baskin:

In a letter dated March 11, 1993, to the Regional Commissioner of Customs in New York, on behalf of Hi-Tec Sports USA, Inc., you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of three hiking boots produced in Korea. Your letter, together with the samples and descriptive literature which were submitted for examination, were forwarded to this office for a response.

FACTS:

The samples are designated as styles GT Max, GT Rugged and the Yazoo. The GT Max consists of a nylon mesh upper covered extensively with full grain nubuk overlays, a phylon midsole, and an all-terrain carbon rubber outer sole. The footwear is an over-the-ankle style, features stitched toe bumpers, and weighs 14.5 ounces in a men's size 8.

THe GT Rugged is comprised of a nylon upper that is covered extensively with nubuk overlays, an EVA midsole, and a carbon rubber, wrap-around outsole. The footwear is an over-the-ankle style, features stitched toe bumpers, and weighs 13.5 ounces in a men's size 8.

The Yazoo consists of a nylon mesh upper, which is more than 50 percent covered with suede overlays, an EVA midsole, and a high traction carbon rubber outer sole, It is a "high-top" style of footwear featuring thickly padded ankles, moisture wicking lining, stitched toe bumpers, and trail stabilizers. It weighs 16 ounces in a men's size 8.

You claim that these hiking shoes are classifiable under subheading 6404.11.20, HTSUS, as footwear with outer soles or 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. The applicable rate of duty for this provision is 10.5% ad valorem.

ISSUE:

Does the language of Additional U.S. Note 2 to Chapter 64, HTSUS, expand the coverage of subheading 6404.11, HTSUS

Are the hiking boots considered "athletic footwear" for purposes of classification under subheading 6404.11.20, HTUS?

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, which reads 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.

It is claimed that Customs erred in T.D. 92-32 by requiring that the hiking/backpacking boots at issue therein be "like" tennis shoes, basketball shoes, gym shoes, and training shoes. The reason assigned for this error is that by inserting Additional U.S. Note 2 into Chapter 64, HTSUS, Congress expressly described what the phrase "tennis shoes, basketball shoes, gym shoes, training shoes and the like should cover. Consequently, an analysis of whether the hiking/backpacking boots were "like" tennis shoes, basketball shoes, gym shoes and training shoes should have been an irrelevant consideration.

You assert that "[i]t is a 'well-settled rule of statutory construction that for the purpose of ascertaining the intention of Congress, the entire context of the statute must be considered and every effort made to give full force and effect to all language contained therein.' . . . To say that a definition is restricted by the terminology of the phrase it is defining is to render the definition void, meaningless, and of no effect, for the very purpose of inserting a definition into a statute is to ensure that the defined phrase is interpreted in accordance with the definition, regardless of what the terms in the phrase might otherwise imply. . . ."

Additional Note 2 to Chapter 64, HTSUS, neither restricts nor expands upon the terminology of subheading 6404.11, HTSUS. The U.S. Note merely clarifies the distinction between sports footwear and other athletic footwear. Further, a fair reading of the note reveals that its purpose was to clarify that it was not necessary for Customs to determine the "principal use" of each style imported as "like" due presumably to the blurring of the lines between "athletic" and casual wear in athletic shoes, (e.g., "athleisure" shoes).

In T.D. 92-32 (16 Cust. Bull. 4), responding to the claim of importers that the hiking/backing 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.

You also assert that the reasons stated above for not considering hiking boots as athletic footwear are incorrect for the following reasons:

1. The hiking shoes in issue are no heavier than for example, the average pair of a corresponding size of basketball shoes. In fact, the literature of the GT Max and the GT Rugged specifically state that those styles are "[l]ightweight shoe[s] designed with an outsole ideal for mountain biking, short distance trail running, or day hiking with lightweight pack." (Emphasis added.)

2. Customs contended that all the exemplars were used in sports requiring fast footwork or extensive running. The sport of hiking requires fast footwork and/ or running -- for example, to cross a hazardous path, to leap across a gap or over a barrier, or to escape the elements or potential danger. Further, the active hiker/backpacker will incorporate sporadic jogging- like running (frequently between one-quarter to one- half mile intervals) into their day-long hikes.

3. If footwear had to be used in a sport requiring extensive running or fast footwear, in order to fall within the purview of "like" footwear under subheading 6404.11, HTSUS, then footwear such as aerobic shoes would be excluded from that provision. However, the sporting goods industry in the United States clearly considered aerobic footwear and other footwear not requiring extensive running (e.g., walking shoes) to come within the footwear category known as athletic footwear

4. The claim by Customs that the exemplars are not constructed so as to protect the foot against rough and rocky terrain is not correct. These shoes have characteristics such as carbon rubber outsoles, lugs on outer soles, EVA midsoles, heel counters, heel stabilizers, nylon mesh/leather uppers, removable sock liners, padded heel tabs, padded collars, padded tongues, lateral stabilizer straps, double toe foxings and adjustable width lacings which protect the foot against rough and rocky terrain.

With respect to aerobic shoes, it should be noted those with textile uppers and soles of rubber or plastics are classifiable under 6404.11, HTSUS, as "athletic footwear." However, 99 percent of imported aerobic shoes have leather or plastic uppers which require classification in heading 6402 or 6403, HTSUS, where the "athletic " distinction does not appear. Contrary to your assertion, aerobics, particularly "high-impact" aerobics require "fast footwork" and "extensive running" action, albeit normally in place. Due to the need for high skid resistance, for protection of the sides of the foot during foot sliding on a hard surface, and for protection from the jarring heel impact when running in place or jumping, aerobic shoes are made like and look like a hybrid of tennis shoes, basketball shoes and training (jogging) shoes. We note that no "low impact" aerobic shoes are sold. "Low-impactors" normally wear regular aerobic shoes capable of "higher-impact" use or tennis or gym shoes. They never wear any kind of hiking boot.

Taking the exemplars in subheading 6404.11, HTSUS, into account and disregarding the treatment of aerobics, it is quite obvious that the Hi-Tec Backpacking Series such as the "Yazoo," with, among other things, its distinct heel, its upper extending way over the ankle, its very thick sole to protect against sharp rocks, and its steel shank, obviously does not belong in subheading 6404.11, HTSUS.

The General Terrain Series such as the GT Rugged and the GT Max are more problematic. They are quite similar; the GT Max is a little heavier and more "hikeish" than the GT Rugged. Due to the studs, they are clearly different from the "hard surface" athletics, i.e., tennis, basketball and gym shoes. However, they are suitable for "short distance trail running." Therefore, there are several similarities between these two and the subset of jogging shoes which are appropriate for use on unpaved surfaces.

Unlike the training shoes, these shoes have the following conspicuous differences:

1. a "heel" stabilizer which on the "in" side of the foot 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.

Based on the foregoing, it is our opinion that the above- listed differences between the shoes in issue and the exemplars listed in subheading 6404.11, HTSUS, prevents them from being considered "like" those exemplars. Consequently, styles GT Max, GT Rugged and Yazoo are classifiable under 6404.19, TSUS, 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, other.

Inasmuch as you have stated that you are interested only in the "athletic" issue, we have not gone beyond the six digit classification. To provide an eight digit classification, we would need additional information (e.g., whether the shoes have protective features).

HOLDING:

The language of Additional U.S. Note 2 to Chaspter 64, HTSUS, does not expand the coverage of subheading 6404.11, HTSUS.

The GT Max, GTR Rugged and the Yazoo are not considered "athletic footwear" for purposes of classification under subheading 6404.11.20, HTSUS.

The GT Max, GT Rugged and the Yazoo are classifiable udner subheading 6404.19, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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