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NY I88710




December 17, 2002

CLA-2-64:RR:NC:347:I88710

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.60, 6403.99.90, 6404.11.90

Mr. Jeffrey W. Tooze
Columbia Sportswear Company
14375 N.W. Science Park Drive
Portland, OR 97229

RE: The tariff classification of footwear from China.

Dear Mr. Tooze:

In your letter dated December 5, 2002, you requested a tariff classification ruling for two footwear styles. You have submitted samples of style “Moodoc Moc” BM2040 and “Woo Pass” BM3304.

“Moodoc Moc” style BM2040 is a slip-on casual shoe with an upper of predominantly leather. The outer sole is rubber/plastics with a “multi-directional lug tread pattern.” You have submitted catalog pages showing “Moodoc Moc” available in American men’s size 7-17. The shoe is not offered in women’s sizes. You state that “similar” styles “Yocum Slip-on,” “Snow Rua Clog” and “Atsa Clog” are offered in both American men’s size 7-15 and American women’s size 5-11. You opine that since “similar” styles are offered, style “Moodoc Moc” should be excluded from “unisex” classification.

Additional Note 1(b) to Chapter 64, Harmonized Tariff Schedule of the United States (HTS), provides that the term “footwear for men, youths youths and boys” covers footwear of American youths’ size 11-1/2 and larger for males, and does not include footwear commonly worn by both sexes. This office considers athletic footwear, sports footwear, certain sandals, hikers, boat shoes, “atheleisure/casual” shoes, certain boots and clogs, among others, as examples of the type of footwear that is commonly worn by both sexes. In DeVahni Inc. v U.S. 66 Cust. Ct. 239, C.D. 4196 (1971), the court noted that the “commonly worn” concept could not be applied “to the class of sandals at bar” but solely to the individual style of footwear. This office interprets this to mean that we don’t look to the class of footwear (i.e. leather sandals) to determine if that class of footwear is commonly worn by both sexes, but limit our focus to the particular style of leather sandal being considered. Is that particular style commonly worn by both sexes? Since style “Moodoc Moc” BM2040 is the type of footwear that is commonly worn by both sexes, and a women’s version is not offered (as is the case for “Yokum Slip-On,” “Sno Rua Clog” and “Asta Clog”) we consider the shoe to be “unisex.”

The applicable subheading for style “Moodoc Moc” BM2040 in sizes up to and including American men’s size 8 will be 6403.99.90 (HTS) which provides for footwear with outer soles of rubber/plastics and uppers of leather, other, for other persons, valued over $2.50/pair. The general rate of duty will be 10 percent ad valorem. The applicable subheading for sizes larger than American men’s size 8 will be 6403.99.60 (HTS) which provides for footwear with outer soles of rubber/plastics and uppers of leather, other, for men, youths and boys. The general rate of duty will be 8.5 percent ad valorem.

Style “Woo Pass” BM/BL3304 is an “athletic” shoe with an outer sole of rubber/plastics and an upper of rubber/plastics and textile material. The sole features traction tread projections that resemble studs or lugs and extend approximately 1/8 inch from the surrounding sole. You have provided three surface area percentage measurements for the shoes upper. The three measurements are provided to include or exclude all or portions of a tongue-like area on the vamp. In all three measurements, textile comprises the constituent material having the greatest external surface area of the upper (ESAU). This office would exclude, from ESAU measurements, that portion of the textile tongue-like material, which appears on a plane lower than the rest of the upper and below the laces. This exclusion would extend downward from the middle of the top-most lace hook to the place, just aft of the toe area, where the tongue begins. We would however, include the portion continuing upward from that point, and extending around the ankle as ESAU.

The applicable subheading for “Woo Pass” BM/BL3304 will be 6404.11.90 (HTS), which provides for footwear with outer soles of rubber/plastics and uppers of textile material, Sports footwear, tennis shoes, basketball shoes, gym shoes, training shoes and the like, other, valued over $12/pair. The general rate of duty will be 20 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling 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 the ruling, contact National Import Specialist, Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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