The tariff classification of footwear from China.

NY I80402 April 26, 2002 CLA-2-64:RR:NC:347:I80402 CATEGORY: Classification TARIFF NO.: 6402.91.50, 6403.91.60, 6403.91.90 Mr. John Pellegrini Ross & Hardies 65 East 55th Street New York, NY 10022-3219 RE: The tariff classification of footwear from China. Dear Mr. Pellegrini: In your letter dated April 8, 2002, you requested a tariff classification ruling for two samples of footwear identified as Models “ADV TREK 6” and “ADV TREK 7” on behalf of Salomon North America, Inc. You describe the merchandise as men’s over-the-ankle hiking boots, specifically: Model “ADV TREK 6” has a leather upper and rubber/plastic outsole. You consider the external surface area of the upper (ESAU) to be the visible materials with the exception of that portion of the outsole which overlaps the upper and the rubber/plastic piece which holds the top two lace loops. You also consider the leather and textile beneath that piece to be part of the ESAU. You state that the upper is approximately 43 percent leather and 35 percent rubber/plastic. Model “ADV TREK 7” has a rubber/plastic upper and outsole. You consider the ESAU to be the visible material with the exception of that portion of the outsole which overlaps the upper and the rubber/plastic piece which holds the top two lace loops. You consider the leather beneath that piece to be part of the ESAU. You assert that the footwear is not “protective” based upon HQ 964625 dated September 10, 2001. In that ruling a low-top hiking shoe with an upper consisting in part of waterproof textile material was held to be other than protective footwear. In T.D. 93-88, October 25, 1993, Customs published “Footwear Definitions” as guidelines to assist the importing community in the classification of imported footwear. Under the heading of “Protection” it states: Footwear is designed to be a “protection” against water, oil or cold or inclement weather only if it is substantially more of a “protection” against those items than the usual shoes of that type. In addition, under examples of what is not included as “protective footwear” it states: 2. Hiking boots that are not substantially warmer or more waterproof than ordinary. In protecting the foot from the mud and sharp objects present in all weather, even a non-protective hiking boot will be heavier (thus warmer and more water resistant) than most shoes. However, footwear that is a “protection” against water include: 2. All items for outdoor use which have uppers or liners made of “Gortex.” In this regard we disagree with your contention that Model “ADV TREK 6” and “ADV TREK 7” are not designed to be worn over or in lieu of other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather. Model “ADV TREK 7” is marked with the trademark GORE-TEX on the upper. The upper of Model “ADV TREK 6” is marked with a tag and the trademark CLIMA-DRY which is identified as a waterproof breathable membrane lining for weather protection. The weather/water protective nature of both linings renders both styles substantially more of a protection against water and cold or inclement weather than other shoes of that type. For purposes of this ruling, we will accept your external surface area component material percentages for the uppers of these models to be accurate. This information may be verified at the time of importation. The applicable subheading for Model “ADV TREK 6” in sizes up to and including American men’s size 8 will be 6403.91.90 Harmonized Tariff Schedule of the United States (HTS), which provides for footwear with outer soles of rubber/plastics and uppers of leather, other, covering the ankle, other, for other persons. 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 6403.91.90 (HTS) which provides for footwear with outer soles of rubber/plastics and uppers of leather, other, covering the ankle, other, for men, youths and boys. The general rate of duty will be 8.5 percent ad valorem. The applicable subheading for the Model “ADV TREK 7” will be 6402.91.50 (HTS), which provides for footwear with outer soles and uppers of rubber/plastics, other footwear, covering the ankle, other than footwear having uppers which are over 90 percent of the external surface area is rubber or plastics, footwear designed to be worn over or in lieu of other footwear as a protection against water. The general rate of duty will be 37.5 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, National Commodity Specialist Division