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NY M82301

May 26, 2006

CLA-2:64:RR:NC:TA:247 M82301


TARIFF NO.: 6404.11.90

Mr. William J. Maloney
Rode & Qualey
55 West 39th Street
New York, NY 10018

Dear Mr. Maloney:

RE: The tariff classification of footwear from China.

In your letter dated April 27, 2006 you requested a tariff classification ruling on behalf of Deckers Outdoor Corporation. You have submitted a sample of style “Sugar Creeper” described as a women’s casual, lace-up shoe. You state that the shoe has an upper with an exterior surface predominantly of textile material and an outer sole of crepe rubber. You submit that the shoe has physical characteristics which render it similar in appearance to an athletic shoe or sneaker; however, you believe, “the shoe is not suitable for use in athletic activity including running or fast footwork.” You note that the crepe rubber outer sole has no tread pattern that, you believe, would be necessary for use as a running shoe. Additionally you state, “the crepe rubber outer sole is extremely tacky or grippy rendering it completely unsuitable for sports involving fast footwork, such as basketball and tennis, or for use as a gym or training shoe.” You believe that “the outsole material prevents the shoe from being able to slide or pivot thus leading to a significant risk of injury during inappropriate athletic use.” It is your opinion that the shoe is not “like” tennis shoes, basketball shoes, gym shoes or training shoes and therefore not “athletic” footwear for tariff classification purposes.

Additional U.S. Note 2, Chapter 64, Harmonized Tariff Schedule of the United States (HTSUS), provides for purposes of this chapter: the term “tennis shoes, basketball shoes, gym shoes, training shoes and the like” covers athletic footwear other than sports footwear, whether or not principally used for such athletic games or purposes.

When making a determination as to whether an item is “like” tennis shoes, basketball shoes, gym shoes or training shoes, we look to the rule of statutory construction, ejusdem generis, which means "of the same kind, class, or nature." Black's Law Dictionary 464 (5th ed. 1979). This rule applies whenever a doubt arises as to whether a given article not specifically named in the statute is to be placed in a class of which some of the individual subjects are named. Under ejusdem generis, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Id. In other words, ejusdem generis requires that merchandise possess the particular characteristics or purposes that unite the specified exemplars in order to be classified under the general terms.

Therefore, We must determine the particular characteristics or purposes that unite tennis shoes, basketball shoes, gym shoes or training shoes. We often reference The Complete Footwear Dictionary Compiled and edited by William A Rossi, Copyright 1994, for guidance. The named exemplars are defined as follows:

Tennis shoe is a plain, white canvas-upper, rubber sole oxford.

Tennis shoe is further defined under the term “sport shoe” as, canvas or leather/nylon mesh upper with ventilation holes, upper cut a bit higher than ordinary low-cut shoe; firm counter, under-foot cushioning, padded collar and tongue, lace-to-toe, protective toe tip. Sole design depends on playing surface (grass, clay) and can vary from moderate to high traction.

Basketball shoe is listed under “sports shoe” as either high top or low-cut, with upper of canvas, nylon/canvas, or leather/canvas, laced to toe, reinforced toe tip, padded collar, cushioned insoles or sometimes a removable orthotic insole inset. The traction sole is either rubber or polyurethane. Air holes are in the upper for added ventilation.

Gym shoe is sneaker-type footwear used for gymnasium activities or sports.

There is no definition provided for the term training shoe, however, that term is generally understood by this office to include running shoes.

Running is defined as; For distance running, a lightweight shoe with leather or leather/nylon mesh upper, cushioned midsole or insole and heel, flexible forepart, rigid counter, traction sole, motion control throughout for stability, padded collar and tongue, lace-to-toe, ample toe spring.

As can be seen from these definitions, there are distinct features characteristic of “athletic” footwear. The features that appear to be consistent are generally a lightweight textile material (usually canvas) upper, a lightweight, flexible rubber outersole that provides traction, lace-to-toe (or some other type of closure system to secure the footwear to the foot), under foot cushioning and padding on the tongue and collar. Other features mentioned are counters, toe tips and ventilation holes.

CBP has previously ruled that certain sandals and certain hikers are not “like” tennis shoes, basketball shoes, gym shoes or training shoes. The enclosure of the foot and the weight of the footwear are considered in “athletic footwear” determinations. In addition, CBP has noted that all of the named exemplars are used in sports requiring fast footwork or extensive running.

The “Sugar Creeper” sample has the look and lightweight feel of “athletic” footwear. The low-cut shoe has a lightweight textile canvas upper and a flexible, lightweight, three-ply rubber/plastics outer sole with no heel. The “crepe” rubber layer of the outer sole, which will be in contact with the ground, does not, as you note, have a traditional tread pattern as seen on many athletic shoes and “sneaker” style footwear. It does however, feature a series of 7/16th inch round cutouts along its length that provide additional traction and prevent slipping. It also has a substantial toe bumper, heel overlap, removable cushion footbed, padded tongue and collar, traditional athletic lace-up closure system and molded plastics heel counters. These features and the flexible, lightweight, athletic styling of the “Sugar Creeper” indicate that the shoe is “like” tennis shoes, basketball shoes, gym shoes and training shoes in characteristics and purpose.

The applicable subheading for style “Sugar Creeper” will be 6404.11.90, Harmonized Tariff Schedule of the United States, (HTS), which provides for footwear with outer soles of rubber or plastics and uppers of textile material, 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.

We note that the submitted sample is not marked with the country of origin. Therefore, if imported as is, it will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

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.


Robert B. Swierupski

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