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NY D81064




August 17, 1998

CLA-2-64:RR:NC:TA:347 D81064

CATEGORY: CLASSIFICATION

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,

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