HQ 963395

April 2, 2002

CLA-2 RR:CR:TE 963395 GGD

CATEGORY: Classification

TARIFF NO.: 6404.19.35

Port Director

U.S. Customs Service

300 South Ferry Street

Terminal Island, California 90731

RE: Decision on Application for Further Review of Protest No.
2704-99-100787, filed

March 25, 1999, Concerning the Classification of Sandals; Additional
U.S. Note

2 to Chapter 64, HTSUSA; \"Athletic Footwear\"

Dear Madam:

This is a decision on a protest timely filed on March 25, 1999, against
your decision in the classification and liquidation of certain sandals
made in China and entered in 1998.

FACTS:

You classified the various styles of sandals in subheading 6404.19.35,
HTSUSA, which provides, in pertinent part, 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: Footwear with open toes or open heels; footwear of the slip-on
type, that is held to the foot without the use of laces or buckles or
other fasteners...: Other," with a general column one duty rate of 37.5
percent ad valorem.

The protestant claims that the sandals should be classified in
subheading 6404.11.80, HTSUSA, the provision 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 \$6.50 but not over \$12/pair,\"
with a general column one duty rate of 90 cents per pair plus 20 percent
ad valorem.

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The sandals at issue, represented by three samples that are identified
by style numbers 1360, 1720, and 6400, have uppers composed of textile
materials and soles composed of rubber or plastics. Each style has a
sole constructed with its own particular type of tread. The sandals are
completely open at the toes and at the heel. The front portion of each
sandal's upper consists of two flat, looped, textile straps that are
joined together by a plastic ring. Together, the straps cover a 1-1/4
inch wide band across the top of the foot behind the toes. The longer of
the two looped straps is adjustable and secures with a hook and loop
fabric closure. The straps are lasted into, and under, each sandal\'s
footbed. The rear portion of each upper consists of two flat, looped,
textile side posts (lasted into, and under, the sandal\'s footbed), each
joined by a separate plastic ring to adjustable ankle straps which
secure with hook and loop fabric closures at the front and back of the
ankle. A flat looped strap of textile material joins the ankle portions
of the upper to the aforementioned ring connecting the straps of the
front portion of the upper. The outer surfaces of the straps of each
style feature decorative designs including either fish, suns and moons,
or Native American art patterns.

ISSUE:

Whether the sandals constitute \"athletic footwear\" such as \"tennis
shoes, basketball shoes, gym shoes, training shoes and the like\" that
is classified in subheading 6404.11.80, HTSUSA.

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 Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUS by offering guidance in understanding the
scope of the headings and GRI.

Chapter 64, HTSUSA, covers footwear, gaiters and the like and parts of
such articles. Heading 6404 provides for footwear with outer soles of
rubber, plastics, leather or composition leather and uppers of textile
materials. Subheading note 1 to chapter 64, HTSUSA, states:

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> For the purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and
> 6404.11, the expression "[sports footwear]{.underline}" applies only
> to:
>
> \(a\) Footwear which is designed for a sporting activity and has, or

has provision for the attachment of spikes, sprigs, cleats, stops,
clips, bars or the like."

\(b\) Skating boots, ski-boots and cross-country ski footwear, snowboard
boots, wrestling boots, boxing boots and cycling shoes.

Additional U.S. note 2 to chapter 64, HTSUSA, states:

> For the purposes of this chapter, the term \"[tennis shoes, basketball
> shoes, gym shoes, training shoes and the like]{.underline}\" 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.

The protestant, through counsel, essentially contends that the statutory
term \"[tennis shoes, basketball shoes, gym shoes, training shoes and
the like]{.underline}\" is not limited to these named exemplars, but
instead includes [all]{.underline} athletic footwear that is not
specifically excepted (by subheading note 1). The protestant cites to
Treasury Decision (T.D.) 92-32, dated March 24, 1992, which Customs
published on April 15, 1992, in the [Customs Bulletin]{.underline},
Volume 26, Number 16. In T.D. 92-32, Customs examined whether a certain
hiking/backpacking boot was \"like\" the above exemplars and found that
the boot was too heavy to qualify. We noted that all of the named
exemplars were used in sports which required fast footwork or extensive
running. The protestant maintains that, since all of the sandals at
issue are designed with secure straps and lightweight, flexible soles,
and are used for sporting activities such as swimming and surfing, as
well as activities involving running and fast footwork, the sandals
possess all attributes Customs considers characteristic of the exemplars
named in Additional U.S. note 2, above, and are therefore \"like\" those
exemplars. We do not agree.

The sandals at issue may be suitable for use in sporting activities and
may even be considered to be \"athletic footwear.\" We find that the
sandals are not, however, \"like\" the named exemplars, each of which
provides, at a minimum, a secure and supportive enclosure for the foot.
None of the named exemplars is generally considered to be footwear that
is open at the toes or the heel, while the sandals are open in both
areas. Unlike the sandals, none of the named exemplars is generally
touted for use in the sporting activities of swimming or surfing.
Although many types of sandals can be, and in fact are, used in running,
the features of open toes, heels,

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sides, and tops would appear to have significant drawbacks. Without the
enclosure and support offered by a shoe like a tennis, basketball, gym,
or training shoe, the foot is freer to slide in various directions.
Depending on weather, terrain, etc., the open nature of the sandals also
permits relatively easy entry of moisture, soil, pebbles, twigs, etc.,
into spaces between the foot and the footwear. While such factors may
amount to mere nuisance, they may also require erratic changes in gait
or occasional stops to remove foreign matter, adjust straps, or rest, in
order to avoid injury, none of which is conducive to the fast footwork
of a sporting activity.

Customs generally considers sandals to be casual footwear designed with
an emphasis on comfort. For tariff classification purposes, sandals that
are designed and intended for sporting activities are not generally
found to be \"like\" the athletic footwear named in Additional U.S. Note
2. See, for example, District Ruling Letter (DD) 800318, dated August
17, 1994, in which an amphibious outdoor sandal engineered for
high-stress activities such as white water rafting was classified in
subheading 6404.19.35, HTSUSA. See also, Headquarters Ruling Letters
(HQ) 958569 (dated February 21, 1996) and HQ 958570 (dated February 4,
1997), in which men\'s sports sandals were classified in subheading
6404.19.35, HTSUSA. In light of the above analysis, we find that the
sandals at issue are properly classified in subheading 6404.19.35,
HTSUSA.

HOLDING:

The various styles of sandals represented by style numbers 1360, 1720,
and 6400, are classified in subheading 6404.19.35, HTSUSA, which
provides, in pertinent part, for "Footwear with outer soles of rubber,
plastics\...and uppers of textile materials\...: Other: Footwear with
open toes or open heels; footwear of the slip-on type, that is held to
the foot without the use of laces or buckles or other fasteners...:
Other." The general column one rate of duty is 37.5 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any additional Applications for Further Review currently
being held in abeyance and involving merchandise and issues similar to
those of the instant case should be disposed of by your office in a
manner consistent with the analysis and holding above. Any reliquidation
of the entries in accordance with the decision must be accomplished
prior to mailing of the decision.

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No later than 60 days from the date of this letter, the Office of
Regulations and Rulings will make the decision available to Customs
personnel, and to the public on the Customs Home Page on the World Wide
Web at www.customs.gov, by means of the Freedom of Information Act, and
by other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division