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HQ 964625




September 10, 2001

CLA-2 RR:CR:TE 964625 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.90

Mr. William J. Maloney
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Modification of NY G80670; Below the Ankle Hiking Shoe; Not Athletic Footwear; T.D. 92-32.

Dear Mr. Maloney:

This letter is in response to your request dated October 2, 2000, for reconsideration of New York Ruling letter (NY) G80670, dated September 12, 2000, filed on behalf of your client Deckers Outdoor Corporation. The request concerned the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two styles, Quest and Casille, of outdoor footwear. Two samples of the Quest and one sample of the Casille were submitted for consideration.

Attending a conference with Headquarters personnel on May 14, 2001, were yourself and Mr. Barry McGeough. Mr. McGeough is an employee of Deckers, and is an expert in the design and production of the Quest and the Casille. In addition to the in-person conference, a telephone conference was held on June 28, 2001. Participating in the telephone conference were yourself and Mr. McGeough. During the conference, it was determined that the style Cassile had undergone several design changes since your request was filed, and that the version of the Casille that was considered in NY G80670, was no longer being imported. In a letter dated June 29, 2001, you confirmed that the request to reconsider the style Cassile was abandoned.

After review of NY G80670, it has been determined that the classification of the style Quest in subheading 6404.11.90, HTSUSA, was incorrect. For the reasons that follow, this ruling modifies NY G80670.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed modification of NY G80670 was published on August 1, 2001, in the Customs Bulletin, Volume 35, Number 31. No comments were submitted in response to the notice.

FACTS:

The Quest is produced for both women and men. It is a low top, below the ankle shoe. The upper is composed of textile material with overlays that are composed of leather covered with a textile material. The textile material is designed to resist abrasion and is waterproof. The uppers are formed on a last similar to the kind used by Vasque to manufacture hiking boots. The Quest has a hard rubber toe guard over the top of a soft plastic/rubber toe protector that wraps around the front of the shoe. It has a hard plastic heel counter to which a hard plastic loop is attached enabling the shoe to be clipped to a backpack.

The outer sole of the Quest is constructed of high abrasion rubber. This rubber is a hard material that is designed to resist wear. The outer sole has lugs 5-6 millimeters in depth, arranged in a pattern similar to that of a traditional hiking boot. Between the forefoot and the heel portions of the outer sole at the arch of the foot, there is a hard thermoplastic urethane material. This material extends between the outer and inner soles into the forefront of the shoe and into the heel. This material is a shank that stiffens the sole and protects the foot.

The shoe is secured to the foot by a system called the Teva Wraptor™ strapping system that is designed to hold the foot securely within the shoe. This system is designed to prevent the foot from sliding forward in the shoe on downhill surfaces. The Wraptor™ system consists of a strap that is 7/8th of an inch wide that passes under the foot between the outsole and the midsole through a channel in the thermoplastic urethane shank. It crosses over the instep of the foot and is integrated into the lacing system. The result is that when the laces of the shoe are pulled tight, the shoe is pulled snugly to the foot from the bottom, as well as the top and the sides.

The midsole is composed of dual density ethyl vinyl acetate (EVA) that absorbs shock. The shoe has a “Shoc Pad” in the heel that is composed of absorbent rubber. Both of the samples are a size 9. One sample weighs 18.8 ounces, the other sample weighs 19.8 ounces.

The Quest is marketed and distributed to retailers that target outdoor activities such as hiking and camping. The shoe is not sold at traditional athletic footwear retailers.

ISSUE

Whether the below the ankle footwear under consideration is classifiable under subheading 6404.11.90, HTSUSA, as tennis shoes, basketball shoes, gym shoes, training shoes and the like.

LAW AND ANALYSIS

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings.

In NY G80670, Customs ruled that the Quest was classifiable under subheading 6404.11.90, HTSUSA, 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:

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

Other:

Valued over $12/pair

The Quest, with its below the ankle upper, may appear to be similar to the “athletic” shoes enumerated above. However, its substantial construction gives it many of the same features present in a hiking boot. Because hiking boots are not provided for in the Tariff and are classified based upon their constituent materials, it is first necessary to determine if the Quest is classifiable under subheading 6404.11, HTSUSA.

In Treasury Decision (T.D.) 92-32 (16 Cust. Bull. & Dec. No.16 at 4), Customs responded to the claim of importers that hiking/backpacking boots are “like” athletic footwear and are therefore classifiable under subheading 6404.11, HTSUSA. Customs rejected this claim, stating:

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.

Emphasis added. Thus, it has been Customs position that in order for footwear to be classified as athletic footwear under subheading 6404.11, HTSUSA, it must be constructed for an activity that requires fast footwork or extensive running. However, it is not necessary that the footwear be principally used for that activity.

Additional U.S. Note 2 to Chapter 64, HTSUSA, provides:

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. Emphasis added.

In Headquarters Ruling Letter (HQ) 953882, dated September 24, 1993, an importer challenged Customs position that because hiking boots are not designed for fast footwork or extensive running, they are not athletic footwear. The importer argued that three styles of hiking boots were athletic footwear because:

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.”

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.

Customs rejected the importer’s claim as to one of the boot styles outright. Customs concluded that the boot, with its distinct heel, over the ankle upper, very thick sole, and steel shank, did not belong in subheading 6404.11, HTSUSA. Applying its requirement that the shoes be designed for fast footwork or extensive running, Customs had more difficulty classifying the other two styles of boots because, although they were distinct from athletic shoes, they were suitable for short distance trail running. Ultimately, Customs looked to the differences between the boots and athletic shoes to conclude that they were not classifiable under subheading 6404.11.20, HTSUSA. Customs noted the following construction designs in reaching its conclusion.

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 HQ 955224, dated March 25, 1994, Customs agreed with the protestant and ruled that a man’s over-the-ankle shoe was not a hiking boot. Customs found that the shoe was more “like” tennis, basketball, gym or training shoes and was classified in subheading 6404.11, HTSUSA. In support of his position, the protestant argued that:

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, however. Also, the upper material is waterproof. These differences are not significant and certainly do not preclude classification as athletic footwear.

2. The footwear is lightweight; it is not heavier than athletic footwear. Its weight will be approximately 13 ounces (men's size 9). This is consistent with the weight of athletic footwear. Tennis shoes, basketball shoes, running shoes and cross-training shoes have weights in this range.

3. The subject footwear is designed for use in activities which require fast footwork and extensive running, specifically scrambling and trial running, although it will be useful in other sports such as mountain biking, hiking and light backpacking.

4. The subject footwear does not exhibit three of the four characteristics cited in HRL 953882 as "conspicuous differences from training shoes." The subject footwear does not have a heel stabilizer which extends past the mid-point of the shoe. The subject footwear does not have stitched-on and cemented-on rubber heel and toe bumpers. The outersoles of the subject footwear are not considerably heavier or stiffer than those typical of training shoes.

5. The subject footwear does exhibit the fourth criteria, uppers which extend above the ankle. This is not a significant difference from athletic footwear. It is a fact that aerobic, crosstraining, basketball and tennis shoes are sold in models which cover the ankle. Accordingly, the fact that the subject footwear has uppers which cover the ankle does not disqualify it from classification as athletic footwear since many exemplars of athletic footwear have uppers which cover the ankle.

Customs agreed that the footwear, although possessing some features of a hiking boot, was not a hiking boot. Customs concluded that the footwear was similar enough to tennis, basketball, gym or training shoes, to be included as "like" them.

The features looked at by Customs when determining if footwear is athletic footwear classifiable under subheading 6404.11, HTSUSA, are those that affect whether the shoe is suitable for fast footwork or extensive running. A common feature present in hiking boots is outer soles that are too heavy and stiff for fast footwork or extensive running. In contrast, athletic footwear have soles that are flexible, lightweight, generally designed for traction on smooth surfaces, and are made of softer rubber. The outer soles of the Quest (1) are stiff, (2) are constructed of hard durable rubber, (3) have deep lug patterns designed for trail use, (4) have a distinctive heel and (5) are heavy. Additionally, they have a stiff hard plastic shank that adds to the stiffness of the outer soles. These features, while good for hiking on trails, make the Quest unsuitable for fast footwork and extensive running.

Counsel submitted marketing materials and independent reviews demonstrating that the Quest is not designed for activities requiring fast footwork or extensive running. The marketing materials reveal that the Quest is sold at retailers specializing in hiking and camping goods as opposed to athletic footwear retailers. Counsel also submitted reviews from two independent sources that show that the Quest is not suitable for “fast footwork.” One review appeared in the 12th Annual Gear Guide, dated March 2001, and published by Backpacker magazine. An editor for the magazine who tested the shoe stated:

Built like a tank without the weight, these aren’t the most nimble light hikers or the easiest to get your foot into, but they sure can handle rocky trails. They offer good traction and great foot control from the crossover stabilizer straps.

The other reviewer, Outdoor Life Network Television, produced a segment on “light hikers.” The Quest, along with two other shoes, was selected for testing and comparison. Three different persons tested the Quest and each had a different opinion of the shoe. The first person found the Quest to be stable. The second found it to have good support, that it was stable, not nimble, and advised that one should not expect to take it trail running. The third reviewer found that the Quest is overdesigned and uncomfortable.

The common thread among all of the reviews is that the Quest is a stable solid shoe. It appears, however, that the stability of the shoe is at the sacrifice of nimbleness and low weight. Based on the independent reviews, the Quest’s outer soles are too heavy, hard, inflexible and cumbersome to allow the wearer to engage in any kind of fast footwork or extensive running.

One factor that is present in traditional hiking boots that is not present in the Quest, is an upper that covers the ankle. Over the ankle uppers provide ankle support and protect the ankle from sticks and rocks, which are desirable features when hiking. While the Quest may not have the same ankle support as a traditional hiking boot, the substantial construction of the sole provides sufficient support. Moreover, the Teva Wraptor™ strapping system, which is designed to prevent the foot from sliding forward in the shoe on downhill surfaces, provides additional stability which helps compensate for its lack of an over the ankle upper. Although the ankle may be exposed, the Quest is more similar to a hiking boot than to tennis, basketball, gym shoes, training shoes and the like.

When determining whether footwear is athletic footwear under subheading 6404.11, HTSUSA, we look at various features including, but not limited to, overall appearance, materials, construction of the upper and construction of the outer sole. The general appearance and many of the construction features present in the Quest are also present in athletic footwear. Notwithstanding these similarities, the weight and inflexibility of the Quest’s outer sole makes it more akin to non-athletic footwear. The Quest is classified under subheading 6404.19.90, HTSUSA.

HOLDING:

NY G80670 is modified. The below the ankle hiking shoe, referred to as the Quest, is classified under subheading 6404.19.90, HTSUSA, 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: Other: Valued over $12/pair. The general column one rate of duty is 9 percent ad valorem.

The classification of the style Cassile in NY G80670 remains unchanged. However, because the version of the style Cassile now being imported is different than the version considered in NY G80670, it may no longer be classified under subheading 6404.11.90, HTSUSA. A copy of both this ruling letter and NY G80670 should be provided with the entry documents filed at the time this merchandise is imported.

EFFECT ON OTHER RULINGS:

NY G80670, issued on September 12, 2000, is hereby MODIFIED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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