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NY L83598




April 14, 2005

CLA-2-64:RR:NC:247: L83598

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.19.90

Mr. Peter Jay Baskin
Sharretts, Paley, Carter & Blauvelt, P.C. 75 Broad Street
New York, NY 10004

RE: The tariff classification of footwear from China

Dear Mr. Baskin:

In your letter dated March 24, 2005 you requested a tariff classification ruling on behalf of Merrell Footwear.

You have submitted samples of three styles of protective footwear which you describe as follows:

1. The “Thermo Multi-Sport Waterproof” has an outer sole of rubber or plastic and an upper, constituent material of rubber or plastic, composed of a molded TPU, with some waterproof “Nubuck leather” which does not cover the ankle and has an external surface area that is not over 90 percent rubber and plastics. The shoe is valued at over $12 per pair and is waterproof with a “polartec” insulated lining to protect against cold. The shoe has two permanently inserted metal “lateral and medial heel spike receptacles” designed to accept the attachment of interchangeable metal spikes which will, in some instances, be imported with the shoe, and may in some instances, not be imported but will be available separately for purchase by the retail customer. The shoe has been designed as a multi-sport activity shoe to be used for winter trail hiking and running.

2. The “Thermo 6 Waterproof” has an outer sole of rubber or plastic and an upper, constituent material of rubber or plastic, composed of a molded TPU with some waterproof “Nubuck leather” which covers the ankle to a height of approximately 6 inches and has an external surface area that is not over 90 percent rubber and plastics. The boot is valued over $12 per pair and is waterproof with a “polartec” insulated lining to protect against cold. The boot has two permanently inserted metal “lateral and medial heel spike receptacles” designed to accept the attachment of interchangeable metal spikes which will, in some instances, be imported with the shoe, and may in some instances, not be imported but will be available separately for purchase by the retail customer. The boot has been specially designed for use in the sport activities connected with winter trail and mountain hiking, sledding, snowshoeing and backpacking.

3. The “Thermo 8 Waterproof” has an outer sole of rubber or plastic and an upper, constituent material of rubber or plastic, composed of a molded TPU with some waterproof “Nubuck leather” which covers the ankle to a height of approximately 8 inches and has an external surface area that is not over 90 percent rubber and plastics. The boot is valued over $12 per pair and is waterproof with a “polartec” insulated lining to protect against cold. The boot has two permanently inserted metal “lateral and medial heel spike receptacles” designed to accept the attachment of interchangeable metal spikes which will, in some instances, be imported with the shoe, and may in some instances, not be imported but will be available separately for purchase by the retail customer. The boot has been specially designed for use in the sport activities connected with winter trail and mountain hiking, sledding, snowshoeing and backpacking.

As you note, in order for footwear to qualify as “sports footwear” for tariff purposes the statutory requirements of Subheading Note 1(a) or (b) to Chapter 64, Harmonized Tariff Schedule of the United States (HTS) must be met.

Subheading Note 1(a) states:

For the purposes of subheading 6402.12, 6402.19, 6403.12, 6403.19 and 6404.11, the expression “sports footwear” applies only to:

Footwear which is designed for a sporting activity and has, or has provision for the attachment of spikes, sprigs, cleats, stops, bars or the like.

Since the submitted samples of “Thermo Multi-Sport Waterproof”, “Thermo 6 Waterproof” and “Thermo 8 Waterproof” have the provision for the attachment of spikes, the only concern is whether or not they are designed for a sporting activity. Customs has previously found that mountain climbing, hiking and trail running are sporting activities. In addition, as you state, in Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976), the Court held that backpacking is a sport. In light of these determinations, we agree that the three footwear styles submitted are “sports footwear” for tariff purposes.

The applicable subheading for “Thermo Multi-Sport Waterproof,” “Thermo 6 Waterproof” and “Thermo 8 Waterproof” will be 6402.19.90, HTS, which provides for footwear with outer soles and uppers of rubber or plastics, sports footwear; other, valued over $12/pair. The rate of duty will be 9 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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