HQ 953882

September 24, 1993

CLA-2 CO:R:C:M 953882 DFC

CATEGORY: Classification

TARIFF NO.: 6404.19; 6404.11.20

Peter Jay Baskin, Esq.

Sharretts, Paley, Carter & Blauvelt. P.C.

Sixty-seven Broad Street

New York, N.Y. 10004

RE: Boots, hiking; Athletic footwear; T.D. 92-32; Additional

U.S. Note 2 to Chapter 64

Dear Mr Baskin:

In a letter dated March 11, 1993, to the Regional

Commissioner of Customs in New York, on behalf of Hi-Tec Sports

USA, Inc., you inquired as to the tariff classification under the

Harmonized Tariff Schedule of the United States (HTSUS), of three

hiking boots produced in Korea. Your letter, together with the

samples and descriptive literature which were submitted for

examination, were forwarded to this office for a response.

FACTS:

The samples are designated as styles GT Max, GT Rugged and

the Yazoo. The GT Max consists of a nylon mesh upper covered

extensively with full grain nubuk overlays, a phylon midsole, and

an all-terrain carbon rubber outer sole. The footwear is an

over-the-ankle style, features stitched toe bumpers, and weighs

14.5 ounces in a men\'s size 8.

THe GT Rugged is comprised of a nylon upper that is covered

extensively with nubuk overlays, an EVA midsole, and a carbon

rubber, wrap-around outsole. The footwear is an over-the-ankle

style, features stitched toe bumpers, and weighs 13.5 ounces in a

men\'s size 8.

The Yazoo consists of a nylon mesh upper, which is more than

50 percent covered with suede overlays, an EVA midsole, and a

high traction carbon rubber outer sole, It is a \"high-top\" style

of footwear featuring thickly padded ankles, moisture wicking

lining, stitched toe bumpers, and trail stabilizers. It weighs

16 ounces in a men\'s size 8.

-2-

You claim that these hiking shoes are classifiable under

subheading 6404.11.20, HTSUS, as footwear with outer soles or

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, having uppers of which over

50 percent of the external surface area (including any leather

accessories or reinforcements such as those mentioned in note

4(a) to this chapter) is leather. The applicable rate of duty

for this provision is 10.5% ad valorem.

ISSUE:

Does the language of Additional U.S. Note 2 to Chapter 64,

HTSUS, expand the coverage of subheading 6404.11, HTSUS

Are the hiking boots considered \"athletic footwear\" for

purposes of classification under subheading 6404.11.20, HTUS?

LAW AND ANALYSIS:

The term \"tennis shoes, basketball shoes, gym shoes,

training shoes and the like\" appearing in subheading 6404.11,

HTSUS, is defined by Additional U.S. Note 2 to Chapter 64, HTSUS,

which reads as follows:

2\. 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.

It is claimed that Customs erred in T.D. 92-32 by requiring

that the hiking/backpacking boots at issue therein be \"like\"

tennis shoes, basketball shoes, gym shoes, and training shoes.

The reason assigned for this error is that by inserting

Additional U.S. Note 2 into Chapter 64, HTSUS, Congress expressly

described what the phrase \"tennis shoes, basketball shoes, gym

shoes, training shoes and the like should cover. Consequently,

an analysis of whether the hiking/backpacking boots were \"like\"

tennis shoes, basketball shoes, gym shoes and training shoes

should have been an irrelevant consideration.

-3-

You assert that \"\[i\]t is a \'well-settled rule of statutory

construction that for the purpose of ascertaining the intention

of Congress, the entire context of the statute must be considered

and every effort made to give full force and effect to all

language contained therein.\' . . . To say that a definition is

restricted by the terminology of the phrase it is defining is to

render the definition void, meaningless, and of no effect, for

the very purpose of inserting a definition into a statute is to

ensure that the defined phrase is interpreted in accordance with

the definition, regardless of what the terms in the phrase might

otherwise imply. . . .\"

Additional Note 2 to Chapter 64, HTSUS, neither restricts

nor expands upon the terminology of subheading 6404.11, HTSUS.

The U.S. Note merely clarifies the distinction between sports

footwear and other athletic footwear. Further, a fair reading of

the note reveals that its purpose was to clarify that it was not

necessary for Customs to determine the \"principal use\" of each

style imported as \"like\" due presumably to the blurring of the

lines between \"athletic\" and casual wear in athletic shoes,

(e.g., \"athleisure\" shoes).

In T.D. 92-32 (16 Cust. Bull. 4), responding to the claim of

importers that the hiking/backing boot is classifiable as

athletic footwear, Customs stated at page 18 the following:

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.

-4-

You also assert that the reasons stated above for not

considering hiking boots as athletic footwear are incorrect for

the following reasons:

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.\"

(Emphasis added.)

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.

-5-

With respect to aerobic shoes, it should be noted those with

textile uppers and soles of rubber or plastics are classifiable

under 6404.11, HTSUS, as \"athletic footwear.\" However, 99

percent of imported aerobic shoes have leather or plastic uppers

which require classification in heading 6402 or 6403, HTSUS,

where the \"athletic \" distinction does not appear. Contrary to

your assertion, aerobics, particularly \"high-impact\" aerobics

require \"fast footwork\" and \"extensive running\" action, albeit

normally in place. Due to the need for high skid resistance, for

protection of the sides of the foot during foot sliding on a hard

surface, and for protection from the jarring heel impact when

running in place or jumping, aerobic shoes are made like and look

like a hybrid of tennis shoes, basketball shoes and training

(jogging) shoes. We note that no \"low impact\" aerobic shoes are

sold. \"Low-impactors\" normally wear regular aerobic shoes

capable of \"higher-impact\" use or tennis or gym shoes. They

never wear any kind of hiking boot.

Taking the exemplars in subheading 6404.11, HTSUS, into

account and disregarding the treatment of aerobics, it is quite

obvious that the Hi-Tec Backpacking Series such as the \"Yazoo,\"

with, among other things, its distinct heel, its upper extending

way over the ankle, its very thick sole to protect against sharp

rocks, and its steel shank, obviously does not belong in

subheading 6404.11, HTSUS.

The General Terrain Series such as the GT Rugged and the GT

Max are more problematic. They are quite similar; the GT Max is

a little heavier and more \"hikeish\" than the GT Rugged. Due to

the studs, they are clearly different from the \"hard surface\"

athletics, i.e., tennis, basketball and gym shoes. However, they

are suitable for \"short distance trail running.\" Therefore,

there are several similarities between these two and the subset

of jogging shoes which are appropriate for use on unpaved

surfaces.

Unlike the training shoes, these shoes have the following

conspicuous differences:

1\. a \"heel\" stabilizer which on the \"in\" side of the foot

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.

-6-

Based on the foregoing, it is our opinion that the above-

listed differences between the shoes in issue and the exemplars

listed in subheading 6404.11, HTSUS, prevents them from being

considered \"like\" those exemplars. Consequently, styles GT Max,

GT Rugged and Yazoo are classifiable under 6404.19, TSUS, 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.

Inasmuch as you have stated that you are interested only in

the \"athletic\" issue, we have not gone beyond the six digit

classification. To provide an eight digit classification, we

would need additional information (e.g., whether the shoes have

protective features).

HOLDING:

The language of Additional U.S. Note 2 to Chaspter 64,

HTSUS, does not expand the coverage of subheading 6404.11, HTSUS.

The GT Max, GTR Rugged and the Yazoo are not considered

\"athletic footwear\" for purposes of classification under

subheading 6404.11.20, HTSUS.

The GT Max, GT Rugged and the Yazoo are classifiable udner

subheading 6404.19, HTSUS.

Sincerely,

John Durant, Director

Commercial Rulings Division