CLA-2 OT:RR:CTF:TCM H122364DSR
Svetland Crouch
Nicaud & Sunseri, LLC
3000 8th Street
Metairie, LA 70002
RE: Reconsideration of NY N105688, dated June 16, 2010; classification of footwear from China
Dear Mrs. Crouch:
This is in response to your correspondence, dated July 12, 2010, requesting reconsideration of New York Ruling Letter (NY) N105688, dated June 9, 2010. NY N105688 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of footwear referred to as “Style # KATAPULT2009.” The request has been made on behalf of importer Athletic Training Innovations, LLC (“ATI”). Our response follows.
FACTS:
In NY N105688, a sample pair of the subject footwear, copies of suggested training programs, a DVD, and a textile strap were submitted with the ruling request. Style # KATAPULT2009 is a training shoe that fits over the ankle, with an upper and outer sole of rubber and plastics, used by men and women. The outer sole of the footwear is molded over the upper and forms a foxing-like band. Unlike traditional athletic shoes, this footwear does not have a cushioned heel portion of an outer sole that is in contact with the ground. Instead, the footwear has a large, elevated, platform-type outer sole permanently affixed under the front part of the footwear that extends past the outline of the wearer’s foot. It is designed to provide stability while engaging in activities, while also keeping the wearer’s heel from touching the ground. The footwear is imported with a product information DVD, copies of suggested training programs and the textile strap. The strap measures approximately 1½ inch wide and 6 feet long. The DVD shows a woman wrapping the strap around her shoes and performing stretching exercises, and a man and woman demonstrating various exercises while wearing the shoes. In NY N105688, CBP determined that the essential character of the set was provided by the footwear and classified the merchandise in subheading 6402.91.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other footwear covering the ankle: Other: Other: Other: Valued over $12/pair,” dutiable at 20% ad valorem.
ATI asserts that the correct classification of the footwear is under subheading 9506.91.00, HTSUS, as “Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof,” dutiable at 4.6% ad valorem. ATI alternatively asserts that the proper subheading is 6402.19.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Other: Valued over $12/pair,” dutiable at 9% ad valorem.
ISSUE:
Whether the subject footwear is classifiable under (1) subheading 6402.19.90, HTSUS, as sports footwear; (2) subheading 6402.91.90, HTSUS, as other footwear covering the ankle; or (3) subheading 9506.91.00, HTSUS, as articles and equipment for general physical exercise, gymnastics or athletics?
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 1 is paramount … The HTSUS is designed so that most classification decisions can be answered by GRI 1 …” Telebrands Corp. v. United States, 865 F. Supp. 2d 1277, 1280 (C.I.T. 2012). Merchandise that is described “in whole by a single classification heading or subheading” is classifiable under that heading. CamelBak Products LLC. v. United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011). At that point, the succeeding GRIs are rendered inoperative. Mita Copystar America v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998). 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 GRIs 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration in this case are as follows:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:
* * *
6402.19 Other:
* * *
Other:
* * *
6402.19.90 Valued over $12/pair.
* * *
Other footwear:
6402.91 Covering the ankle:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
6402.91.90 Valued over $12/pair.
* * * *
9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof:
* * *
Other:
9506.91.00 Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.
* * * *
The subheadings under consideration are eo nomine provisions that describe articles by specific names and not by use. Absent limiting language or contrary legislative intent, an eo nomine provision covers all forms of the named article. Nidec Corporation v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995).
The group of imported items consists of the footwear, copies of suggested training programs, a DVD and a textile strap. The textile strap is possibly described by heading 6307, HTSUS. The DVD is possibly described by heading 8523, HTSUS. The
copies of suggested training programs are described by heading 4911, HTSUS. The footwear is possibly described by headings 6402 or 9506, HTSUS.
Because no single heading of the HTSUS completely describes the imported items and, as noted above, its components are prima facie classifiable in two or more headings, classification must fall to GRI 3. GRI 3 provides, in pertinent part:
When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The Explanatory Notes to GRI 3(b) state the following
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards) …
The group of items as imported meet the above requirements, and is a “set” for purposes of GRI 3(b). In its discussion of the essential character of composite goods, EN (VIII) to GRI 3(b) states:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
There have been several court decisions on "essential character" for purposes of classification under GRI 3(b). See Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (C.I.T. 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (C.I.T. 2006), aff’d by 491 F.3d 1334 (Fed. Cir. 2007) ("[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.") (quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971)). In particular, the court stated "[a]n essential character inquiry requires a fact intensive analysis." Id. at 1284.
Here, the copies of suggested training programs act as guides to maximizing the activities performed while wearing the footwear. The strap appears to be designed to be used in a limited fashion as an accessory to the footwear during stretching exercises, while the bulk of activity performed in the footwear consists of various field training exercises conducted without employing the strap. The DVD contains videos showing a woman performing said stretches and a man and woman performing the field exercises. Both the stretches and the field exercises are performed in the footwear. There would be little value in possessing the DVD, strap or copies of suggested training programs without also possessing the item needed to perform both of those activities. Taking the above into account, we find that the essential character of the set is provided by the footwear because it is indispensable for the performance of all of the depicted activities. Therefore, classification of the set will be determined by the classification of the footwear, per GRI 3(b).
You assert that the footwear should be excluded from consideration as “footwear” and instead be classified under Chapter 95, HTSUS, as sports equipment. In support of this, you note that the article is designed to perform specific exercises that target calf muscle training and is not intended to be worn as “regular sports and athletic footwear” as evident by its design and support structure. You also state that the article cannot be worn for an extended period of time as is typical of footwear (specifically athletic footwear) and the essential character and purpose of the article is provided by the parts that do not cover the foot, i.e., the platform that elevates the foot and allows the wearer to exercise the leg muscles. In the alternative, you assert that the footwear is classifiable as “sports footwear” under subheading 6402.19.90, HTSUS.
We first note that Note 1(g) to Chapter 95, HTSUS, excludes sports footwear from Chapter 95, HTSUS. Thus, if the subject footwear is classifiable in subheading 6402.19.90, HTSUS, consideration of the applicability of Chapter 95, HTSUS, ends.
Heading 6402, HTSUS, covers “Other footwear with outer soles and uppers of rubber or plastics …” There is no dispute that the footwear possesses outer soles and uppers of rubber and plastics. If the footwear indeed classifiable in heading 6402, the question then becomes whether it is “sports footwear” classified in subheading 6402.19.90, HTSUS, or “Other footwear: Covering the ankle: Other: Other: Other: Valued over $12/pair” and classified in subheading 6402.91.90, HTSUS.
In order to qualify as “sports footwear,” Subheading Note 1 to Chapter 64 states the following:
For the purpose 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 provision for the attachment of spikes, sprigs, cleats, stops, lips, bars or the like;
Skating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and cycling shoes.
Clearly the subject article is not a skating boot, ski-boot or any other type of footwear described in subparagraph (b) above. As stated above, in support for the argument that the article is classifiable under heading 95, HTSUS, you state that the article is designed to perform specific exercises that target calf muscle training and is not intended to be worn as “regular sports and athletic footwear” as evident by its design and support structure. You also state that the article cannot be worn for an extended period of time as is typical of footwear (specifically athletic footwear) and the essential character and purpose of the article is provided by the parts that do not cover the foot, i.e., the platform that elevates the foot and allows the wearer to exercise the leg muscles. We agree that the article is not intended to be worn as “regular sports and athletic footwear.” We also emphasize that we have long interpreted Subheading Note 1 to Chapter 64, HTSUS, is a narrow manner. For instance, in NY H87213, dated February 2, 2002, a pair of American football shoes and two pairs of soccer shoes were held to not be classifiable as “sports footwear” because the projections from their soles did not constitute “cleats” under subheading Note 1 to Chapter 64. In the ruling we noted:
It has long been Customs position that subheading note 1 should be interpreted narrowly. We note that the phrase which states that ‘sports footwear’ applies only to ...’ conveys an intent to reasonably limit footwear classified as ‘sports footwear.’
Customs interpretation of the terms spikes, sprigs, cleats, stops, bars or the like in regards to ‘sports footwear’ has generally been to include projections attached to, or molded into, the soles of sports footwear” to provide traction during outdoor sporting activities such as golf, field sports, (baseball, soccer, American football, rugby etc.) or track & field events. In addition, crampons and similar attachments for rock/ice-climbing boots have also been included as fitting the definition of these terms … It is further our interpretation that all the exemplars listed in the note have relatively sharp points or edges which are designed to dig into the ground (turf or ice). In order to effectively dig into turf or ice, such projections, generally, must be spaced fairly widely apart.
Here, the footwear possesses no projections whatsoever and is therefore precluded from classification as “sports footwear” in subheading 6402.19, HTSUS.
Subheading 6402.19.90, HTSUS, eo nomine provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $12/pair.” The subject article, which is not “sports footwear,” possesses characteristics that are directly described by the subheading. As such, the article is classifiable in subheading 6402.19.90, HTSUS.
Our analysis does not end here, however, because we must also examine the applicability of heading 9506, HTSUS. Heading 9506 provides for “Articles and equipment for … sports …,” which is referred to as “sports equipment.” The tariff does not define the term “sports equipment,” however the courts have had occasion to define it. In Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246, 1260-51 (Fed. Cir. 2004), the Federal Circuit defined the term as articles that are “necessary, useful or appropriate” for that sport. The court further refined that definition in LeMans Corp. v. United States, 660 F.3d 1311 (Fed. Cir. 2011), in which it looked to the Explanatory Notes to heading 9506. EN 95.06(B) states that Heading 9506 covers many requisites for sports, some of which are actually worn by their user, such as protective equipment in the form of fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads. The court noted the following:
[T]he Explanatory Notes to Section 9506 indicate that, to the extent "sports equipment" encompasses articles worn by a user, those articles are not apparel-like and are almost exclusively protective in nature. …
Accordingly, we find that the CIT properly looked to the Explanatory Notes to Section 9506 to assist with the interpretation of Heading 9506. The vast majority of the examples in those notes are items that a user would not wear on his or her body, but instead consist of articles that are entirely separate from the user (e.g., tennis nets, children's playground equipment, archery targets, bob-sleds), held by the user in his or her hand (e.g., golf clubs, tennis rackets, polo mallets, hockey sticks), or are accessories fastened to a user (e.g., snow skis, water skis, ice skates). The few examples that a user actually would wear, which are identified [as fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards, ice hockey pants with built-in guards and pads,] are almost exclusively used for protection and would complement, or be worn in addition to, apparel worn for a particular sport.
Id. at 1319 – 1322. Therefore, “sports equipment” is defined as merchandise that is not akin to apparel and is necessary, useful or appropriate for a sport, and if the merchandise is worn by a user, the merchandise is almost exclusively protective in nature and complements, or is worn in addition to, apparel worn for a particular sport. Id.; see also Riddell, Inc. v. United States, 37 C.I.T. ___, Slip Op. 13-37 (March 20, 2013).
Here, the footwear is not “necessary, useful or appropriate for a sport.” As stated by you, it cannot be worn for “an extended period of time as typical of footwear and specifically, athletic footwear.” Additionally, the article offers no protection to its user in a manner akin to the exemplars of EN 95.06(B)(13). It is instead specialized footwear designed to emphasize the engagement of specific muscle groups during targeted training. We therefore find that the article is not classifiable as “Articles and equipment for general physical exercise, gymnastics or athletics” under subheading 9506.91.00, HTSUS.
HOLDING:
By application of GRI 3, the subject footwear is classified in heading 6402, HTSUS, specifically in subheading 6402.91.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $12/pair.” The column one, general rate of duty is 20% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
N105688, dated June 9, 2010, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division