CLA-2 OT: RR: CTF: TCM H032829 EGJ
Judith Haggin
J.L. Haggin & Associates Co.
1100 S.W. Sixth Ave.
Suite 212
Portland, OR 97204
RE: Modification of HQ H012677, dated February 15, 2008; Classification of Aquatic Training Shoes
Dear Ms. Haggin:
This is in regard to Headquarters Ruling Letter (HQ) H012677, dated February 15, 2008, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of aquatic training shoes. In HQ H012677, U.S. Customs and Border Protection (CBP) affirmed New York Ruling Letter (NY) L85922, dated August 2, 2005, which classified the aquatic training shoes under subheading 6404.11.90, HTSUS. We have reviewed the analysis set forth in HQ H012677 and have determined that the analysis is incorrect. While we agree that the aquatic shoes are classifiable under subheading 6404.11.90, HTSUS, the correct provision under subheading 6404.11, HTSUS, is “tennis shoes, basketball shoes, gym shoes, training shoes and the like,” and not “sports footwear.”
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocation was published on July 23, 2014, in the Customs Bulletin, Volume 48, No. 29. CBP received no comments in response to this notice.
FACTS:
The subject articles, identified as “Model Mako, Style AQx1001,” are athletic-type shoes designed for water fitness. They are sold by the importer, AQx, Inc. (AQx). AQx markets the shoes for use in vigorous activities such as running in water or aqua aerobics. The following is an image of the shoes:
The shoes have a predominately textile material upper surface that does not cover the ankle. They also have a rubber/plastics external surface area, structural reinforcements at the toe and along the sides and eyelet stays at the back. The shoes also feature a functional lace closure complete with an adjustable plastic cinch stop to tighten and hold the shoe on the foot.
The shoes have a cemented-on, unit molded, rubber/plastic material bottom/sole that overlaps the upper surface. There are three, semi-rigid rubber/plastic wing-like protrusions, or “gills,” on both sides of the shoe’s upper external surface. These “gills” provide resistance when exercising in water. The bottoms of the shoes contain small drain holes for water to drain out of the shoes after the wearer exits the water. The shoes are valued at over $12 per pair.
ISSUE:
Are the aquatic training shoes classifiable as “sports footwear” or as “tennis shoes, basketball shoes, gym shoes, training shoes and the like” under subheading 6404.11, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The HTSUS provisions under consideration are as follows:
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.11 Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like:
Other:
6404.11.90 Valued over $12/pair
* * *
Subheading Note 1 to Chapter 64 provides that:
For the purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and 6404.11, the expression “sports footwear” applies only to:
Footwear which is designed for a sporting activity and has, or has a provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like;
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 provides that:
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.
* * *
Applying GRI 6, the issue is whether the shoes are identifiable as “sports footwear” or as “tennis shoes, basketball shoes, gym shoes, training shoes and the like” under subheading 6404.11, HTSUS. Subheading Note 1 to Chapter 64 states that “‘sports footwear’ applies only to...,” which conveys an intent to reasonably limit footwear classified as “sports footwear.” CBP has consistently held that the definition of “sports footwear” in Subheading Note 1 to Chapter 64 should be interpreted narrowly. See HQ 956942, dated November 7, 1994; HQ 963462, dated November 24, 2000 and NY H87213, dated February 22, 2002.
The terms “spikes, sprigs, cleats, stops, clips [and] bars” are not defined in the HTSUS or its legislative history. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
The Complete Footwear Dictionary, 172 (2nd ed. 2000), defines a spike as “a short, sharp metal piece protruding from the bottom of the shoe sole, used for traction on track shoes. Also used on some shoes or boots for mountain climbing or walking on slippery surfaces.” It defines cleats as “a knob or spike on the sole for increased traction; arranged in groups or patterns.” Id. at 34. The Complete Footwear Dictionary also defines a clip as “the tightness of shoe fit on the last around the topline.” Id. at 34. A shoe’s last is the plastic, wood or metal form over which the shoe is made to conform to the prescribed shape and size of the shoe. Id. at 98. A bar is defined as “a piece of material of any of various shapes or thicknesses, used for shoe modifications or as an orthotic to alter foot tread or gait.” Id. at 9. The Complete Footwear Dictionary shows diagrams of different shoe bars attached to shoe soles.
A sprig and a stop are not defined in The Complete Footwear Dictionary. The Merriam-Webster Online Dictionary (2014) defines a sprig as “a small headless nail.” Id. available at www.merriam-webster.com. It also defines a stop as “a device for arresting or limiting motion.” Id.
CBP’s interpretation of the terms “spikes, sprigs, cleats, stops, bars or the like” in regards to “sports footwear” has generally included projections attached to, or molded into the soles of sports footwear to provide traction during sporting activities such as golf, field sports (baseball, soccer, American football, rugby etc.) or track & field events. In addition, CBP has also included crampons and similar attachments for rock/ice-climbing boots in the definition of these terms.
CBP has determined that outdoor recreational footwear suitable for everyday walking is not “sports footwear.” See HQ 956942 (CBP found that a steel shank wrapped in canvas in the sole of a horseback riding shoe did not satisfy the definition of sports footwear). According to HQ 963462 and NY H87213 respectively, golf shoes with plastic nubs instead of cleats and football shoes with short flat cleats instead of long sharp cleats do not meet the definition of sports footwear.
The subject aquatic shoes have gills on the sides and drain holes on the bottoms. Neither of these elements provides traction during sporting activities. The gills and drain holes are not similar to spikes, sprigs, cleats, stops bars or the like. As such, the aquatic training shoes cannot be classified as sports footwear under subheading 6404.11, HTSUS.
The aquatic training shoes are specifically designed for athletic training in the water. The gills provide resistance for runners training in the water, as well as adding resistance for participants in water aerobics. As such, the shoes are training shoes and are classifiable as “tennis shoes, basketball shoes, gym shoes, training shoes and the like” under subheading 6404.11, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject aquatic training shoes are classifiable under subheading 6404.11.90, HTSUS, which provides for, in pertinent part: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: footwear with outer soles of rubber or plastics: … tennis shoes, basketball shoes, gym shoes, training shoes and the like: other: valued over $12/pair.” The 2014 column one, general rate of duty is 20 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ H012677, dated February 15, 2008, is hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division