OT:RR:CTF:FTM H304876 TJS
Port Director
Port of Los Angeles
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Long Beach CA
Attn: Crystal Morgan, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 2704-19-102962; Classification of Women’s Footwear
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-19-102962, received on April 12, 2019, on behalf of Shoes West Inc. (“Protestant”), regarding U.S. Customs and Border Protection’s (“CBP”) tariff classification of certain women’s footwear under the Harmonized Tariff Schedule of the United States (“HTSUS”). In addition to the written submission, our decision below takes into consideration a telephone conference with Protestant’s counsel on December 1, 2020.
FACTS:
The merchandise at issue is a style of women’s shoes, identified as style no. MST-13482A or “Moc Star.” The shoes are below-the-ankle sneakers with a lace-up closure, a textile upper with a separately-attached tongue, a padded collar, heel counter, a foxing or foxing-like band, and a general athletic appearance. Pictures provided by Protestant show a rubber or plastics outer sole with traction provided by the raised letters of the company’s brand “täos” in a repeating pattern that covers the entire external surface that touches the ground and small grooves along the edge of the outer sole. According to marketing materials, the cushioned removable footbed provides balance, stability, arch support, heel support, and metatarsal support.
The subject merchandise was entered on December 21, 2018 under subheading 6404.19.90, 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 plastics: Other: Other: Valued over $12/pair.” The merchandise was liquidated on March 15, 2019 and re-liquidated on March 22, 2019 under subheading 6404.11.90, 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 plastics: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.”
ISSUE:
What is the tariff classification of the women’s footwear under the HTSUS?
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. (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. 2704-19-102962 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.
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”). 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. 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 GRI may then be applied.
The 2018 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: (20%)
* * * * *
6404.19: Other:
Other:
6404.19.90: Valued over $12/pair: (9%)
* * * * *
Additional U.S. Note 2 to Chapter 64, HTSUS, provides as follows:
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.
* * * * *
Treasury Decision (“T.D.”) 93-88, which provides “Footwear Definitions,” states, in pertinent part, that “athletic” footwear includes:
“Athletic” footwear (sports footwear included in this context) includes:
1. Shoes usable only in the serious pursuit of a particular sport, which have or have provision for attachment of spikes, cleats, clips or the like.
2. Ski, wrestling & boxing boots; cycling shoes; and skating boots w/o skates attached.
3. Tennis shoes, basketball shoes, gym shoes (sneakers), training shoes (joggers) and the like whether or not principally used for such athletic games or purposes.
It does not include:
Shoes that resemble sport shoes but clearly could not be used at all in that sporting activity. Examples include sneakers with a sequined or extensively embroidered uppers.
A “slip-on”, except gymnastic slippers.
Skate boots with ice or roller skates attached.
Footwear Definitions, Treas. Dec. 93-88, 27 Cust. B. & Dec. No. 46 (Oct. 25, 1993).
* * * * *
In its submission, Protestant argues that the subject footwear is not “athletic” footwear described by the clause “tennis shoes, basketball shoes, gym shoes, training shoes and the like” in the text of subheading 6404.11, HTSUS. Although the Protestant concedes that the shoe has some features considered athletic, it argues that the majority of the features are routinely found in footwear that is not athletic. Specifically, Protestant contends that: (1) the shoe is not particularly flexible; (2) the outer sole does not have an athletic tread; (3) the shoe lacks a padded tongue, anti-injury devices, and toe bumpers, (4) the collar has minimal padding; (5) the heel counter is soft and pliable; and (6) the shoe has a fully collapsible upper and a moccasin-type toe. Furthermore, Protestant notes that the shoe’s purpose is comfort and it is not marketed for athletic activity.
The dispute is at the six-digit level of classification. The footwear is described by the terms of heading 6404, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” At issue here is whether the footwear under consideration is “athletic” footwear within the meaning of Additional U.S. Note 2 to Chapter 64, HTSUS, and classified in subheading 6404.11, HTSUS, as “tennis shoes, basketball shoes, gym shoes, training shoes and the like,” or whether the footwear is classified in subheading 6404.19, HTSUS, as “other” footwear.
Subheading 6404.11, HTSUS, provides for “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 n.3 (Fed. Cir. 2014)(“Deckers II”) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994)). In Deckers Corp. v. United States (“Deckers I”), 532 F.3d 1312 (Fed. Cir. 2008), aff’d, Deckers II, 752 F.3d 949, on the issue of whether Teva Sport Sandals were classified in subheading 6404.11 as “athletic footwear,” the Court of Appeals for the Federal Circuit stated that to determine the essential characteristic of the specified enumerated articles, “courts may consider attributes such as the purpose, character, material, design, and texture.” Deckers I, 532 F.3d at 1316. In regard to the particular exemplars of heading 6404.11, HTSUS, the court determined that “the fundamental feature that the exemplars share is the design, specifically the enclosed upper, which contains features that stabilize the foot, and protect against abrasion and impact.” Id. at 1317.
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”) H236274 (Sept. 17, 2015) (classifying “athleisure” shoes as athletic); and HQ 953882 (Sept. 24, 1993) (holding that hiking boots were not “like” the exemplars). Thus, a shoe may be designed for casual use and still be classified as athletic footwear.
It is CBP’s position that for footwear to be classified as athletic footwear under subheading 6404.11, HTSUS, it must be suitable for an activity that requires fast footwork or extensive running. See HQ 964625 (Sept. 10, 2001) (“All the exemplars are used in sports which require fast footwork or extensive running.”); and NY N154085 (Apr. 4, 2011). Thus, when determining whether footwear is classified as athletic footwear under subheading 6404.11, HTSUS, CBP looks at various features and characteristics including, but not limited to, overall appearance, materials, and construction of the upper and outer sole. Some of the features or characteristics of athletic footwear CBP has consistently included are: a lightweight upper, a lightweight, flexible outer sole that provides traction, lace-up, or some other type of secure closure, underfoot cushioning, collar (padded or not), tongue (padded or not), toe bumpers, heel counters/stabilizers, and ventilation holes. See HQ H265479 (Mar. 28, 2016); NY N310350 (Mar. 26, 2020); NY N020906 (Jan. 9, 2008); and NY M82301 (May 26, 2006). However, athletic footwear need not exhibit all of these features. See NY N218203 (June 6, 2012); and NY N154085 (Apr. 4, 2011).
We disagree with the Protestant’s assertion that the outer sole does not have the flexibility and tread requisite of athletic footwear. Photos of the sample show that the sole is flexible enough to easily fold the footwear in half. Additionally, the Taos website states that the Moc Star’s outsole consists of “Flexible, durable rubber.” Taos, https://taosfootwear.com/view-all/moc-star (last visited Dec. 1, 2020). We also find that the footwear’s outer sole tread, which consists of the company’s logo “täos” patterned across the entire external surface, provides traction on smooth and unsmooth surfaces. The outer sole also has grooves along the outer edge, providing further traction and allowing the wearer to engage in fast footwork. An online retailer of the subject footwear, Zappos.com, demonstrates the flexibility of the shoe in a promotional video and states that the “Durable rubber outsole provides excellent traction and a long-lasting wear.” Zappos.com, https://www.zappos.com/product/8998551/ (last visited Dec. 1, 2020). We also find that the subject footwear has features that protect the wearer from injury such as the removable padded insole, which is shock absorbent and provides heel support, arch support, and metatarsal support. Furthermore, the Protestant asserts that the shoe is marketed as casual, comfortable shoes and not as athletic footwear, although the Taos website categorizes the Moc Star shoes as “Active” sneakers, implying that they are capable of dynamic physical activity. Taos, https://taosfootwear.com/active (last visited Dec. 1, 2020). Regardless of whether or not the shoes are marketed as athletic footwear, the determinative issue is whether the subject Moc Star shoe shares physical characteristics with the exemplars of subheading 6404.11, HTSUS, as “athletic footwear.” See, e.g., NY N031799 (July 15, 2008) (classifying canvas sneakers that were marketed as casual wear fashion shoes in subheading 6404.11.9050, HTSUS, based on their athletic features).
The Moc Star shoe at issue is similar to the one in HQ H236274, dated September 17, 2015, wherein CBP classified a men’s sneaker identified as Keds® “The Champion” in subheading 6404.11.89, HTSUS. Like the footwear at issue, the shoe in HQ H236274 was a below-the-ankle lace-up sneaker with a textile upper, a rubber or plastics outer sole, with a foxing or foxing-like band, and a general athletic appearance. The rubber outsole provided traction and was lightweight and flexible. The importer submitted that the shoe lacked arch support, shock absorbers, toe bumpers, padding around the heel, ankle, and tongue, underfoot cushioning, and significant traction on the sole. Nevertheless, CBP determined that the shoe shared physical characteristics and attributes with the exemplars of subheading 6404.11, HTSUS.
Upon review and examination of the materials provided, we conclude that the footwear has the general appearance and many of the construction features present in athletic footwear. In particular, the shoe has a lightweight, flexible upper that is secured to a flexible, rubber outsole with a foxing or foxing-like band. It has a lace-front closure with a tongue that secures the footwear to the wearer, enabling the wearer to engage in fast footwork. The shoe also has underfoot cushioning with support features, a padded collar, heel counter, and a traction outer sole. The Moc Star footwear possesses all the attributes that CBP considers characteristic of the exemplars named in Additional U.S. Note 2, above, and are therefore “like” those exemplars. Accordingly, we find that the footwear at issue is classified in subheading 6404.11.90, 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 plastics: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.”
HOLDING:
By application of GRI 1, the subject women’s shoes are classified under heading 6404, HTSUS, specifically under subheading 6404.11.9050, 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 plastics: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair: For women: Other.” The 2018 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 of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division