OT:RR:CTF:FTM H302976 TSM
Mr. Gregory Watts
Skechers USA, Inc.
255 S. Sepulveda Blvd.
Manhattan Beach, CA 90266
RE: Revocation of NY N285583 and NY N299433; The tariff classification of footwear from China.
Dear Mr. Watts:
This is in reference to New York Ruling Letter (“NY”) N285583, dated June 6, 2017, concerning the tariff classification of certain footwear. This is also in reference to NY N299433, dated August 23, 2018, also concerning the tariff classification of certain footwear. In those rulings, U.S. Customs and Border Protection (“CBP”) classified the footwear at issue under subheading 6404.19.90, Harmonized Tariff Schedule of the United States (“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.” Upon additional review, we have found this classification to be incorrect. For the reasons set forth below we hereby revoke NY N285583 and NY N299433.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 53, No. 37, on October 16, 2019, proposing to revoke NY N285583 and NY N299433, and to revoke any treatment accorded to substantially identical transactions. Five comments opposing the proposed action were received on or before November 15, 2019.
FACTS:
NY N285583 describes the subject merchandise as follows:
Style 80523L is a girl’s, closed-toe, closed-heel, below-the-ankle shoe. You provided the external surface area breakdown of the upper as 55.16 percent textile and 44.84 percent synthetic (rubber or plastics). The shoe has bungee type elastic laces that are threaded through four textile eyelets. It features a padded collar and a padded tongue with a sewn on textile overlay strip on the topside that extends up to form a pull-on tab containing the word Skechers. The shoe has a heel pull-on tab and a synthetic heel overlay with the word Skechers. Embroidered to the lateral side of the shoe is a butterfly and floral motif. It has a hook and loop strap closure at the top of the instep with a label that has the word Skechers. The outer sole is made from 90 percent rubber and 10 percent ethylene vinyl acetate (EVA). The shoe is lightweight with a flexible outer sole. The value is stated to be over $12/pair.
An image of footwear Style 80523L is displayed below:
NY N299433 describes the subject merchandise as follows:
GrandPro Tennis Sneaker Stock # W14150, is a woman’s closed-toe, closed-heel, and below-the-ankle casual shoe. The upper is made from textile material and leather. The textile material upper is embroidered with gold metallic thread depicting foliage. It features a lace-up closure, a leather patch on the tongue, and a leather heel overlay with the brand name Cole Haan. The shoe has a rubber or plastics outer sole. It is not “protective” and does have a foxing or foxing-like band. The shoe is lightweight with a flexible outer sole.
An image of footwear Style # W14150 is displayed below:
ISSUE:
What is the tariff classification of the footwear at issue?
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. 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.
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
* * *
6404.19 Other:
Other:
6404.19.90 Valued over $12/pair
* * *
Additional U.S. Note 2 to Chapter 64 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.
* * *
“Footwear Definitions” T.D. 93-88, dated October 25, 1993, provides in relevant part:
“Athletic” footwear (sports footwear included in this context) includes:
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.
Ski, wrestling & boxing boots; cycling shoes; and skating boots w/o skates attached.
Tennis shoes, basketball shoes, gym shoes (sneakers), training shoes (joggers) and the like whether or not principally used for such 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.
In NY N285583 and NY N299433, CBP concluded that consistent with the definition of “athletic footwear” in T.D. 93-88, “ ‘athletic’ footwear does not include … sneakers with a sequined or extensively embroidered upper.” Upon additional review, we find that to be incorrect. Although sneakers with a sequined or extensively embroidered uppers are referenced as examples of footwear that is not covered by the T.D. 93-88 definition of “athletic” footwear, we note that the definition also requires the footwear to be such that could clearly not be used at all in a sporting activity. Accordingly, we find that embroidery alone does not preclude footwear from being classified as “Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like” of subheading 6404.11, HTSUS.
Upon further review, we find that the record does not show that the embroidered footwear at issue in NY N285583 and NY N299433 could clearly not be used at all in a sporting activity. Moreover, there is nothing in the construction of the footwear at issue in these rulings that would preclude its use as athletic. We find that the footwear at issue in NY N285583 is suitable for athletic activity based on the following features: it is lightweight and flexible, it has a traction outer sole, an underfoot cushioning, a secure form of closure (consisting of no tie elastic shoelaces and hook and loop strap closure), as well as an overall athletic appearance. With regard to the footwear at issue in NY N299433, we also find that it is suitable for athletic activity based on the following features: it is a sneaker with an overall athletic appearance, it has adequate underfoot cushioning, a secure lace closure, and a flexible rubber/plastic traction outer sole. Therefore, we conclude that although the footwear at issue is embroidered, it meets the T.D. 93-88 definition of “Athletic” footwear. Moreover, it meets the definition of “tennis shoes, basketball shoes, gym shoes, training shoes and the like” found in Additional U.S. Note 2 to Chapter 64, which provides that athletic footwear may or may not be principally used for athletic games or purposes.
Accordingly, we find that the footwear at issue in NY N285583 and NY N299433 is classified in subheading 6404.11, HTSUS, and more specifically 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.”
As noted above, we received five comments opposing the proposed revocation of NY N285583 and NY N299433. Three of the commenters argued that embroidered footwear is not “athletic footwear” pursuant to T.D. 93-88. Specifically, one of the commenters argued that embroidered footwear is excepted by T.D. 93-88 from classification as “athletic footwear.” One other commenter claimed that pursuant to T.D. 93-88, extensively embroidered footwear is, by definition, incapable of athletic use. One more commenter further argued that CBP’s determination that the shoes at issue “are suitable for athletic activity” because they have flexible outsoles with traction, cushioned insoles and a secure closure, is a definition of athletic footwear that does not exist in the HTSUS or T.D. 93-88.
With regard to the above arguments, we note that T.D. 93-88 provides in relevant part that athletic footwear does not include shoes that resemble sport shoes but clearly could not be used at all in a sporting activity. Examples include sneakers with a sequined or extensively embroidered uppers. Accordingly, consistent with T.D. 93-88, sneakers with sequined or extensively embroidered uppers cannot be classified as “athletic footwear” only if they are also such that could not be used at all in a sporting activity. As discussed in our decision above, embroidery alone does not preclude footwear from being classified as “Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like” of subheading 6404.11, HTSUS. With regard to the argument concerning the definition of “athletic footwear,” we note that both T.D. 93-88 and Additional U.S. Note 2 to Chapter 64, HTSUS, in relevant part define “athletic footwear” as “tennis shoes, basketball shoes, gym shoes, training shoes and the like, whether or not principally used for such athletic games of purposes.” As discussed above, T.D. 93-88 further provides that athletic footwear does not include shoes that resemble sport shoes but clearly could not be used at all in a sporting activity. Consistent with this definition, we find that the footwear at issue is akin to “tennis shoes, basketball shoes, gym shoes, training shoes and the like” and is “suitable for athletic activity” because it has features such as flexible outsoles with traction, underfoot cushioning, a secure lace closure, as well as an overall athletic appearance.
In addition to the above, one commenter also argued that the principle of ejusdem generis requires anything falling under the general term “or the like,” found in the T.D. 93-88 definition of “athletic footwear,” to possess the same essential characteristics as the specified enumerated articles. However, according to the commenter, the presence of embroidery suggests that embroidered footwear does not possess the characteristics of athletic footwear. The commenter referenced HQ H265479, dated March 28, 2016, in which CBP concluded that certain shoes were suitable for “fast footwork” since they did not have any external decorations, such as sequins or beads that could otherwise come loose and fall off. The commenter further stated that footwear with extensive embroidery is not suitable for “fast footwork,” which is the essential characteristic of all athletic footwear, according to HQ 952228, dated June 7, 1993, and other rulings. Moreover, this commenter argued that extensive embroidery on footwear presents an injury hazard, rendering the shoes unsuitable for use during a sporting activity.
Upon review, we agree with the commenter that the principle of ejusdem generis requires that the items falling under the general term “or the like” need to possess the same essential characteristics as the specified enumerated articles. However, as discussed above we find that the footwear at issue falls under the term “or the like” and is “suitable for athletic activity” because it has certain features found in the athletic footwear. We do not find that embroidery negatively impacts these athletic features or presents an injury hazard. While suitability for “fast footwork” is a characteristic of athletic footwear, as CBP determined in HQ 952228, we do not find that footwear with extensive embroidery is not suitable for fast footwork. In this regard, we also note that embroidery is not similar to external decorations such as sequins or beads that could come lose and fall off, presenting an injury hazard. Even if one or more of the threads were to come loose, such threads would remain attached to the footwear and not affect its suitability for fast footwork.
One of the commenters also argued that footwear should not be defined as “athletic footwear” unless it is marketed as such. Specifically, the commenter claimed that the definition of athletic footwear should include factors other than the general appearance and several other characteristics, such as foxing or lightweight sole. The commenter claimed that footwear marketing should also be taken into account. Similarly, another commenter also noted that embroidered footwear is not marketed as athletic footwear.
In this regard, consistent with discussion above and the definition found in T.D. 93-88 and Additional U.S. Note 2 to Chapter 64, HTSUS, we find that the relevant considerations are whether the footwear at issue has features that would qualify it as “tennis shoes, basketball shoes, gym shoes (sneakers) and the like,” and whether it is such that “resemble[s] sport shoes but clearly could not be used at all in [a] sporting activity.” Accordingly, we conclude that at issue in this context are footwear characteristics, not the way footwear is marketed.
In addition, several commenters argued that embroidered footwear is not athletic because there are no, or very few, examples of actual use of such footwear as athletic. Specifically, one of the commenters argued that there are almost no examples of actual shoes with athletic qualities being offered for sale in athletic specialty shops, or used in gyms, courts, etc. Further, this commenter claimed that extensively embroidered footwear has never been understood by the trade to have “general athletic appearance,” because it is not sought out by or offered to consumers as athletic. Such footwear, the commenter further argued, is produced for casual use and is a type of modern casual footwear, which has some traits similar to athletic footwear, but does not have the technical aspects of modern athletic construction. Similarly, one other commenter argued that embroidered footwear belongs in the category of fashion sneakers, which share some traits with athletic footwear, but are not intended for athletic purposes. The commenter also noted that there are only a few examples of fashion sneakers being used for athletic purposes. One more commenter claimed that since the tariff term “tennis shoes, basketball shoes, gym shoes, training shoes and the like” defines footwear by use, classification as athletic requires suitability for use and some actual use of the footwear in pursuit of an athletic activity. According to this commenter, suitability for use means actually, practically and commercially fit for such use, with the mere possibility for use being insufficient.
Further, one commenter also argued that while any type of footwear could theoretically be capable of athletic use, such use would clearly be fugitive. According to this commenter, even footwear that could clearly be used for athletic purposes, if such use is out of the norm, is not “athletic footwear” for tariff classification purposes, especially if there is an overwhelming amount of purely decorative fun and fashion features. Another commenter also argued that while Additional U.S. Note 2 states that athletic footwear is classifiable as such “whether or not principally used for such athletic games or purposes,” that does not mean that a fugitive use would be determinative, and just because a shoe theoretically could be used as athletic footwear because of the presence of flexible outer soles and other features, extensive embroidery precludes its classification as athletic footwear.
With regard to the above comments, we disagree. In this regard, we note that to qualify under Additional U.S. Note 2 and T.D. 93-88 as “athletic footwear,” evidence of actual use is not necessary. Contrary to the above arguments, we find that the relevant considerations are whether the footwear at issue has features that would qualify it as “tennis shoes, basketball shoes, gym shoes (sneakers) and the like,” and whether it could be used for athletic activity, even if such use is not principal. Only embroidered footwear that “could not be used at all in [a] sporting activity” would not qualify as “athletic footwear” under U.S. Note 2 and T.D. 93-88. As discussed above, we also disagree that embroidery alone precludes footwear from being classified as “athletic footwear.”
HOLDING:
By application of GRIs 1 and 6, we find that the footwear at issue in NY N285583 and NY N299433 is classified under heading 6404, HTSUS, and specifically 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.” The 2021 column one, general rate of duty is 20% ad valorem.
EFFECT ON OTHER RULINGS:
NY N285583, dated June 6, 2017, and NY N299433, dated August 23, 2018, are REVOKED, in accordance with the above analysis.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division