CLA-2 OT:RR:CTF:TCM H233585 LWF
Port Director
Service Port of Atlanta
U.S. Customs and Border Protection
157 Tradeport Drive
Atlanta, GA 30354
Attn: Jeannelle Brooks, Senior Import Specialist
RE: Application for Further Review of Protest No. 1704-12-100256; Classification of footwear from China
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 1704-12-100256, timely filed on July 13, 2012, by Mizuno USA, Inc. (“Mizuno”). The AFR concerns the classification of footwear from China under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue consists of the Mizuno “9-Spike Blast 3” shoe, style #320403, a cleated, multipurpose shoe designed for use during sports activities on artificial grass and synthetic turf athletic fields. The 9-Spike Blast 3 is described as a lace-front closure, over-the-ankle shoe. It possesses a light-weight upper of rubber or plastics (less than 90%), padded collar, and cushioned underfoot. The shoe’s outsole is constructed of rubber or plastics and is covered with approximately 200 closely spaced, cone-shaped protrusions, as well as 11 small, flat-topped wedges. Mizuno states that the shoe is designed for use during baseball, softball, lacrosse, football, and other sport activities played on artificial turf fields.
The instant merchandise was entered at the Service Port of Atlanta on July 20, 2011 under subheading 6402.19.15, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Sports footwear: Other: Having upper of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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: Other.”
On October 31, 2011, U.S. Customs and Border Protection (CBP) issued a CF-28 Request for Additional Information to Mizuno to provide two samples of the 9-Spike Blast 3 shoe. Samples of the shoe were subsequently submitted for laboratory analysis at CBP’s Savannah Laboratory, which concluded in a report, dated December 23, 2011, that the shoe “contains a foxing or foxing-like band around 52% of the perimeter of the sample” and that the exterior surface area of the shoe upper, including accessories and reinforcements, is 83% rubber or plastic and 17% textile. Excluding accessories and reinforcements, the Savannah Laboratory found that the exterior surface area of the upper consisted of 77% rubber or plastic and 23% textile.
Based on the physical characteristics of the sample provided, CBP issued a CF-29 Notice of Action (“NOA”), dated January 4, 2012, reclassifying the 9-Spike Blast 3 under subheading 6402.99.90, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Other: Valued over $12/pair.” On March 7, 2012, CBP provided Mizuno with a separate CF-29 NOA, modifying its classification determination to 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 instant merchandise was liquidated on May 29, 2012 in a manner consistent with the final NOA, under subheading 6402.91.90, HTSUS. Mizuno filed its protest on July 13, 2012, and asserts that the correct classification for the 9-Spike Blast 3 is under subheading 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.”
ISSUE:
Whether the 9-Spike Blast 3 shoe is classified under subheading 6402.19.90, HTSUS, as other sports footwear valued over $12/pair, or subheading 6402.91.90, HTSUS, as other footwear valued over $12/pair?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1704-12-100256 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Specifically, the question of whether the physical characteristics of the cone-shaped protrusions and flat-top wedges on the outsole of the shoe are consistent with the definition of “sports footwear” provided by Subheading Note 1 to Chapter 64 is an issue of first impression.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of the same heading shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS subheadings under consideration are the following:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:
6402.19 Other:
Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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:
6402.19.15 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.
* * * * *
Subheading Note 1(a) to Chapter 64 states, in pertinent part, the following:
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 provision for the attachment of spikes, sprigs, cleats, stops, clips, bars, or the like;
* * * * *
Inasmuch as the 9-Spike Blast 3 shoe possesses a rubber or plastics outer sole and upper, the instant merchandise is fully described in heading 6402, HTSUS. Consequently, there is no dispute that the shoe is classified in heading 6402, HTSUS, which provides for footwear with outer soles and uppers of plastics or rubber. Similarly, there is no dispute that the shoe covers the ankle and is valued over $12 per pair. As this dispute concerns the proper tariff classification of merchandise in the subheadings of the same heading, GRI 6 applies.
Whether or not the 9-Spike Blast 3 shoe is used in sporting activities, it does not follow that the footwear constitutes "sports footwear" under Subheading Note 1 to Chapter 64, HTSUS. As noted in Headquarters Ruling Letter (“HQ”) 963465, dated November 20, 2000, the consideration of what constitutes a sporting activity is a separate consideration from this issue of whether footwear designed for those activities constitutes "sports footwear." Not all footwear used for a sporting activity constitutes "sports footwear" under Subheading Note 1 to Chapter 64, HTSUS.
The term “sports footwear” is defined in Subheading Note 1(a) to Chapter 64. Within Subheading Note 1(a), the phrase, “‘sports footwear’ applies only to,” conveys the intent to reasonably limit footwear classified as “sports footwear.” Consequently, it has long been CBP’s position that Subheading Note 1 to Chapter 64, HTSUS, should be interpreted narrowly. See HQ 956942, dated November 7, 1994; HQ 955260, dated November 3, 1993; HQ 963451, dated August 10, 2000; HQ 963526, dated November 21, 2000; and New York Ruling Letter (“NY”) N161314, dated May 12, 2011.
Further supporting CBP’s narrow interpretation of the term “sports footwear,” Treasury Decision (T.D.) 93-88, published by CBP in the Customs Bulletin, Volume 27, Number 46, dated November 17, 1993, contains certain footwear definitions used by CBP import specialists to classify merchandise. With regard to the term “sports,” as used in the description “sports footwear,” T.D. 93-88 states, in pertinent part:
SPORTS: Sports footwear applies only to:
Footwear that is designed for a sporting activity and has, or has provision for the attachment of, spikes, cleats, clips, bars or the like.
The terms “spikes” and “cleats” are not defined in the HTSUS or the ENs. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, we look to the term’s common or commercial meaning. See Lonza, Inc. v. United States, 46 F.3d 1098, 1106-07 (Fed. Cir. 1995); Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). 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.
Similarly, CBP has issued an Informed Compliance Publication, providing guidance that:
Spikes, sprigs, cleats, stops, clips, bars and the like are, generally, projections possessing relatively sharp points or edges, designed to dig into turf or ice to provide traction during sporting activities. For molded footwear where the outer sole has projections formed in the mold along with the outer sole, the projections must be:
Relatively sharp or pointed,
At least ¼ inch in length when measure from the surrounding sole material,
Widely spaced, making everyday walking in such footwear impractical.
On this basis, CBP does not broadly interpret the exemplars “spikes, sprigs, cleats, stops, bars or the like.” It is CBP’s position that the terms include projections that are attached to, or molded into, the soles of “sport footwear” in order to provide traction during outdoor sporting activities such as golf, field sports (e.g., baseball, soccer, American football, rugby, etc.), or track and field events. CBP has also considered crampons and similar attachments for rock and ice climbing boots to be comparable projections which possess relatively sharp points or edges that are designed to dig into turf or ice. See HQ 955014, dated April 11, 1994, and HQ 956942, dated November 7, 1994. In order to effectively dig into turf or ice, such projections, generally, must also be spaced fairly widely apart. The physical characteristics and necessary placement of the exemplar projections tend to render everyday walking in sports footwear impractical. See NY N161314; and HQ 964980, dated July 12, 2002.
In NY N161314, for example, CBP found that widely-spaced ¼-inch protections on the outsole of a baseball shoe created an uneven walking surface, and thus supported classification of the shoe as “sports footwear.” By contrast, in HQ 963526, CBP concluded that a men’s lace-up football shoe featuring an outsole covered with hundreds of closely spaced projections did not meet the description of “sports footwear,” as used in chapter 64, because the walking surface created by the projections was essentially uniform and would not cause any discomfort while walking on hard surfaces.
Here, we find that the instant merchandise most closely resembles the footwear at issue in HQ 963526. The walking surface of the 9-Spike Blast 3 features hundreds of closely spaced projections and 11 flat-top wedges that are essentially uniform in length. As such, the shoe is not substantially similar to the merchandise at issue in NY N161314, because it does not appear that everyday walking on flat, hard surfaces in this shoe would be impractical. Consequently, although we find that the shoe is an article of athletic footwear whose outsole characteristics provide increased traction on certain firm surfaces or artificial turf, these projections are not “like” the spikes, sprigs, cleats, stops, clips, or bars associated with the term “sports footwear.” See HQ 963526; and NY N161314.
Mizuno contends that the nubs on the soles of the instant shoes serve the same function or purpose as “spikes, sprigs, cleats, stops, clips and bars,” i.e., to increase traction. However, we note that the function of increasing traction is a nearly universal characteristic of the soles of all footwear. Shoes that are marketed for use during specific activities are designed to provide the adequate amount of traction for the intended activity. See HQ 964980. Accordingly, the fact that the instant shoe is designed to increase traction is less important than is the means by which the traction is achieved.
Mizuno also states that “[t]he consideration of principal use as a determining factor of footwear classification has been demonstrated by CBP.” In support, Mizuno notes that in HQ H015088, dated October 29, 2007, CBP commented that for classification purposes, it had been instructed to “consider the footwear in light of its ‘intended use’” by the Court of International Trade (CIT) in High-Tech Sports v. United States, 20 C.I.T. 1046 (1996). Consequently, Mizuno argues that CBP should consider the principal use of the instant merchandise when considering whether the 9-Spike Blast 3 shoe meets the definition of “sports footwear.”
Mizuno’s reliance on the CIT’s decision in High-Tech Sports is misplaced. There, the CIT concerned itself with the limited issue of whether certain leather pieces of imported boots were constituent materials or accessories or reinforcements for purposes of calculating the external surface area of the boot’s upper. High-Tech Sports, 20 C.I.T at 1048-49. Importantly, the court did not investigate the intended use of the merchandise with the aim of identifying the character or description of the boot itself as a whole. Instead, the court merely gave some consideration to the use of the boot with respect to its focused inquiry of defining the component pieces of the boot’s upper. As such, CBP’s reference in H015088 to “intended use” stems from the court’s statement that:
The Court finds that the testimony of Plaintiff’s witness… was entitled to some weight on the origins of Hi-Tech boots, their uses and the intent of the manufacturer. High-Tech Sports, 20 C.I.T at 1047-48.
Consequently, we find that High-Tech Sports does not support Mizuno’s broad proposition that the intended or principal use of a shoe should be used as a determining factor of classification, and Mizuno does not offer alternative evidence to support such a statement.
Inasmuch as the 9-Spike Blast 3 does not fall within the definition of “sports footwear” provided by Subheading Note 1(a) to Chapter 64, the instant merchandise are excluded from classification under subheading 6402.19, HTSUS. Therefore, they are classified in subheading 6402.91.90, HTSUS, as
other footwear with outer soles and uppers of rubber or plastics, covering the ankle and valued over $12 per pair.
HOLDING:
By application of GRI 6 and GRI 1, Mizuno’s 9-Spike Blast 3 shoe, Style #320403, is classified in heading 6402, HTSUS. Specifically, it is classifiable 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. You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division