OT: RR: CTF: TCM: H236274 HvB
Michelle Fudalik
Senior Customs Compliance Specialist
Stride Rite Sourcing International, Inc.
191 Spring Street
P.O. Box 9191
Lexington, MA 02420
Re: Request for Reconsideration of NY N231840; Classification of Men’s Lace-up Sneaker
Dear Ms. Fudalik:
This is in response to your letter, dated November 9, 2012, in which you requested reconsideration of New York Ruling Letter (NY) N231840. This decision takes into account your telephonic meeting with members of my staff on August 10, 2015, and your supplemental submission dated August 20, 2015. Your request included a sample of the merchandise, which is being returned to you with this letter.
In NY N231840, dated September 18, 2012, U.S. Customs and Border Protection (CBP) described the merchandise, stock #KM-FA13-001H, as a men’s lace-up sneaker with a rubber or plastics outer sole and a textile upper that does not cover the ankle. CBP classified the subject merchandise in subheading 6404.11.89, HTSUS, 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 plastic: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $6.50 but not over $12/pair: Other.” In an email to CBP, dated January 10, 2013, correcting your original claim that the shoe will cost in excess of $12/pair, you submit that the merchandise is provided under subheading 6404.19.89, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastic: Other: Other: Valued over $6.50 but not over $12/pair: Other.”
A sample of the subject shoe was reviewed by this office. The sample consists of a Men’s Keds® shoe which is marked as “The Champion”. It also has a textile upper, laces which together with the enclosed upper and back provide structure, and a rubber sole that provides traction. The outersole components are lightweight and flexible.
We hereby affirm NY N231840 because the subject shoes share physical characteristics and attributes with the exemplars of subheading 6404.11, HTSUS, which provides for “sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like.” The principle of ejusdem generis applies to provisions containing the phrase “and the like”. In an ejusdem generis analysis, "where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified." Deckers Corp. v. United States, 752 F.3d 949, 952 (Fed. Cir. 2014) citing Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994). In Deckers Corporation v. the United States (Deckers I), 532 F. 3d 1212 (Fed .Cir. 2008), aff’d Deckers Corp. v. United States (Deckers II), 753 F 3d 949 (Fed. Cir. 2014), on the issue of whether Teva Sport Sandals were classified in subheading 6404.11 as “athletic footwear”, the Court of Federal Appeals stated: “To determine the essential characteristics, courts may consider attributes such as the purpose, character, material, design and texture.” Deckers I., 532 F. 3d 1312 at 1315-1316.
In NY N231840, we observed “[t]he shoe is lightweight with a flexible sole, has a foxing or a foxing-like band and is generally athletic in appearance.” In NY D81064, dated August 17, 1998, we explained that the weight of the shoe and the relative flexibility of the outer sole enabling the wearer to participate in activities requiring fast footwork and running are among the factors to consider whether a shoe qualifies as an “athleisure shoe.”
You do not disagree that the shoe is comfortable and is suitable for casual use. In your supplemental submission dated August 20, 2015, you submit that the subject shoe should be classified as a “casual shoe” because it lacks “arch support, shock absorbers, toe bumpers, padding around the heel, ankle, and tongue, underfoot cushioning, and significant traction on the sole.” Your submission includes print-outs from online retailers showing the subject Keds Champion shoe sold as a “casual shoe.” However, you do not provide any citations for this assertion. In response, we note that term “casual shoe” is not at issue, nor is it a tariff term. Rather, what is at issue is whether the subject Keds shoe shares physical characteristics with the exemplars of subheading 6404.11, HTSUS, as “athletic footwear”. Like the named exemplar “tennis shoes,” the subject shoe is appropriate for casual use.
In your request, you concede that the subject Ked shoe is light and flexible. You argue, however, that “it does not have the support and cushioning expected in athletic footwear” and accordingly is not classifiable as “athletic footwear.” Additional U.S. Note 2 to Chapter 64 states that athletic footwear is classified in subheading 6404.11, HTSUS, “whether or not principally used for such athletic games or purposes.” CBP has interpreted this Note to mean that shoes need not be used solely for athletic purposes but also those shoes that share appearance, qualities and character with the named exemplars are classified there. See Headquarters Ruling Letter (HQ) 953882, dated September 24, 1993 on “athleisure” shoes, aff’d Deckers I, 532 F. 3d. at 1316. Thus, a shoe may be designed for casual use and still be classified as athletic footwear.
You also submit that the subject Ked shoe has a heel and is thus not classifiable as athletic footwear. In support, you cite to HQ 953882 supra, in which we ruled that a hiking boot was not classifiable as athletic footwear. In that case, we noted that the subject boot had a “distinct heel.” This is not the case with the instant shoe. Physical examination and measurement of the sample presented found an approximately 3 mm variation in the surface of the outer sole that faces the ground. It is this office’s opinion that the outer sole of the instant shoe does not contain a heel. Furthermore, in HQ 953882, we noted that the boot had other features, such as an upper extending over the ankle and a very thick sole, which are not characteristic of footwear of subheading 6404.11, HTSUS.
For all the aforementioned reasons, we hereby affirm NY N231840. Accordingly, the subject men’s Ked lace-up sneaker is classified in subheading 6404.11.89, HTSUS, as “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material: 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: Other.”
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division