CLA-2 CO:R:C:M 952294 DFC
District Director of Customs
U.S. Customs Service
555 Battery Street
P.O. Box 2450
San Francisco, CA 94126
RE: Further Review of Protest no. 2809-92-100324: Boots,
snowboard; Footwear, sports; Ski boots
Dear Sir:
This is response to the Application for Further Review of
Protest no. 2809-92-100324 dated February 19, 1992, covering
shipments of "hard" plastic snowboard boots produced in Italy.
Samples were submitted for examination.
FACTS:
The samples consist of four styles of "hard" plastic
snowboard boots i.e., Corvo, Crazy Horse, Freedom and Flyer. A
sample of style Fantax was not provided but you state that it is
similar to style Crazy Horse. The entries covering these styles
were liquidated under subheading 6402.19.90, Harmonized Tariff
Schedule of the United States (HTSUS), as other footwear with
outer soles and uppers of rubber or plastics, sports footwear,
other, other, valued over $12/pair. The applicable rate of duty
for this provision is 20% ad valorem.
The protestant claims that the snowboard boots are properly
classifiable under subheading 6402.11.00, HTSUS, as other
footwear with outer soles and uppers of rubber or plastics,
sports footwear, ski-boots and cross-country footwear. The
applicable rate of duty for this provision is 6% ad valorem.
ISSUE:
Are the snowboard boots classifiable as sports footwear?
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LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]." In other words
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.
Subheading Note 1 to Chapter 64, HTSUS, reads as follows:
1. For the purposes of subheading 6402.11, 6402.19,
6403.11, 6403.19, and 6404.11, the expression "sports
footwear" 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, wrestling boots, boxing boots and
cycling shoes.
In the past, Customs has taken the position that
subheading note 1 to Chapter 64 should be interpreted narrowly.
Our position is in line with the interpretation of the Harmonized
System Committee (HSC) in its drafting of the above legal note.
The rationale for our position was that this note limits sports
footwear to only the general description set forth in (a) and the
enumerated articles in (b). In order to meet the definition, an
article must either meet the criteria set forth in (a) or be one
of the enumerated types of footwear set forth in (b). In
Headquarters Ruling Letter (HRL) 089162 dated April 29, 1992,
Customs ruled that these snowboard boots do not meet the stated
criteria for being considered sports footwear under (a).
Specifically, although they are designed for a sporting activity,
they do not have attachments or provision for attachment of
spikes, sprigs, cleats, stops, clips, bars or the like. Further,
it was noted that the listing of the types of footwear in (b) is
exhaustive which would eliminate snowboard boots which are not
enumerated therein from consideration as sports footwear.
-3-
As stated in HRL 952160 dated July 28, 1992, addressed to
the protestant, the U.S. representative has made a proposal at
the Harmonized System Committee (HSC) which meets in Brussels,
Belgium, to amend the Harmonized System (HS) to include snowboard
boots within the enumerated types of sports footwear within
subheading note 1(b) to chapter 64. The text of the amendment
was approved by the HSC in October of this year but will not be
effective until January 1, 1996. Because of the delayed
effective date of this amendment, we are compelled to follow the
existing law in deciding this case.
There are three categories of snowboard boots viz., soft,
hard, and hybrid. All snowboard boots have certain
characteristics in common. The boots are constructed with a
forward lean in the extended upper to place a rider in the
correct stance on the snowboard. The upper, reaching to about
mid-calf, is higher in the back and lower in the front. The
boots are stiff and relatively heavy. These attributes make
snowboard boots uncomfortable to walk in. Therefore, they would
be principally, if not exclusively, used for the sport of
snowboarding.
All snowboard boots contain two separate boots. The inner
boot slips out of the outer boot and may be called a sock liner,
liner, or bladder. The inner boot is thickly padded and usually
has a form of closure independent from the outer boot. The outer
boot is several sizes larger than the inner boot and generally
would not provide the padding or protection from the elements
necessary to ride the snowboard.
Hard snowboard boots have a hard shell upper of injection
molded plastic and closures similar to downhill ski-boots. Their
soles are extended to create the fitting for a plate binding on
the snowboard.
Soft snowboard boots have applied soles which are cut away
or angled at the front end of the toe and back end of the heel so
that they do not meet the level ground. The upper usually has an
additional belt or strap across the top of the boot for
protection from the binding's toe strap. Soft snowboard boots
are used with a high back binding system, which involves two or
three straps across the upper and a high back piece with a strap
around the ankle that gives added support to the back of the
ankle and lower calf.
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Hybrid snowboard boots have attributes of both hard and soft
boots. Hybrids have hard plastic soles and lower uppers of
injection molded plastic like downhill ski-boots or hard
snowboard boots. Softer, cut and sewn plastics are used on the
extended upper, like soft snowboard boots. They have heel and
toe ridges built into the boots for attachment of plate bindings.
It is our observation that the above-listed attributes
identify these snowboard boots as articles of commerce distinct
from non-sports footwear, such as cold weather or hiking boots,
and constituting a class of highly specialized footwear designed
principally or exclusively for use on snowboards. Further, they
are traded in commerce according to their use in snowboarding,
not as ski boots or cross-country ski footwear.
Based on the foregoing, it is our position that under
current law the three categories of snowboard boots are not ski-
boots or other sports footwear for tariff purposes.
The protestant claims that the instant snowboard boots
qualify as sports footwear under subheading note 1(a) to chapter
64, because they are obviously designed for sporting activity and
have provisions for the attachment of bindings, or clips. An
examination of the samples submitted reveals that the "bars"
which the user "clips" into the bindings are mere protuberances
at the top of the sole at the toe and heel area. We do not
believe these extended soles are within the meaning of bars and
clips. Consequently, the hard plastic snowboard boots do not
qualify as sports footwear under subheading note 1(a).
Protestant notes that three styles of soft snowboard boots
which were the subject of New York Ruling Letter (NYRL) 860116
dated February 26, 1991, were classified as ski-boots. He
asserts that if these soft boots which are significantly
different from ski-boots were classified as ski-boots, then it
was reasonable for him to assume that the classification for the
hard plastic snowboard boots would also be as ski-boots. We
disagree. In HRL 083713 dated May 1, 1989, Customs ruled that a
soft snowboard boot was classified as other waterproof footwear,
with outer soles of rubber or plastic rather than as a ski-boot.
Certainly, different classifications for the same type of
footwear should have alerted the protestant to the fact that this
was a problem area where no assumptions could be made. In this
situation the protestant should have requested a ruling from
Customs pursuant to section 177.2, Customs Regulations
(19 CFR 177.2), regarding the proper classification of hard
plastic snowboard boots.
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Protestant states that the boots in issue should have been
classified as ski boots because he entered them as such in good
faith [reliance on NYRL 860116]. It is our opinion that the
protestant did not rely on NYRL 860116 dated February 26, 1991,
because the shipments subject to this protest were exported from
Italy on November 11, 1990 and January 3, 1991, which means that
the protestant ordered those boots even before he sought a ruling
from Customs as to their classification. Further, it appears
that one of the shipments was entered even before protestant
applied for a ruling from Customs.
Inasmuch as the hard plastic snowboard boots are neither
ski-boots nor other sports footwear, it is our position that they
are properly classifiable under subheading 6402.91.50, HTSUS, as
other footwear with outer soles and uppers of rubber or plastics,
covering the ankle, other, footwear 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. The applicable
rate of duty of is 37.5% ad valorem.
HOLDING:
Under current law the hard plastic snowboard boots are
neither ski-boots nor other sports footwear for tariff purposes.
Since the rate of duty under the classification indicated
above is more than the liquidated rate, the protest should be
denied in full. A copy of this decision should be attached to
the Customs Form 19, and provided to the protestant as part of
the notice of action on the protest.
Sincerely
John Durant, Director
Commercial Rulings Division