HQ H265479
CLA-2 OT:RR:CTF:TCM HQ H265479 TSM
Port Director, Port of Boston, Massachusetts
U.S. Customs and Border Protection
10 Causeway Street – Room 603
Boston, MA 02222
Attn: Thomas J. Brigham, Senior Import Specialist
Re: Protest and Application for Further Review No. 0401-14-100073; Classification of certain women's footwear
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 0401-14-100073, timely filed on October 6, 2014, on behalf of Bucketfeet, Inc. (“Bucketfeet” or “Protestant”) regarding the tariff classification of two styles of women’s footwear (a slip-on style and a lace-up style) under the Harmonized Tariff Schedule of the United States (HTSUS). This office received and inspected samples of the Bucketfeet footwear along with images of both footwear styles.
FACTS:
Bucketfeet manufactures and sells artist-designed footwear. According to the Bucketfeet website at www.bucketfeet.com, Bucketfeet exists to connect people through art. It notes that a different artist designed every shoe they make to create footwear that tell a story. The Bucketfeet artist community includes painters, graphic designers, graffiti artists, photographers, and more.
The slip-on style shoes at issue have the following style names: Caduras Pink, Like Butter Black, WTF, Vidaboa, Cabezas, Pasco 54, Tatau, Sixth Street, Earth, Reef, Pineappleade, Fuego 2, Nomad 2, Bamboo 2 and Pescao 2. The lace-up style shoes at issue have the following style names: Atypical, False Denim, Fuego, Patchwork, Waterloo, Austin, Orange Sherbert, Bad Panda, Navajo (Archer), Jayson Atienza, Masterpiece, Delta, Mesa Sunset, Fat Sugar, and Jayson.
Both the slip-on and lace-up styles have textile canvas uppers and rubber outer soles. The slip-on style is designed to slip on the foot with no buckles, ties or other closures and is secured to the wearer’s foot with elastic gores on either side of the vamp. The lace-up style has laces that are tied to hold the shoe to the foot. Both styles include a rubber foxing-like band that goes around the entire shoe, reaching to the ground, with an additional rubber toe bumper that wraps the front of the shoe.
Both styles have a ribbed bottom sole that provides traction. The horizontal ribbings on the bottom sole are interrupted by additional, separate ribbings that form the word “Bucketfeet” across the length of the sole. Both styles have thick, cushioned insoles with massaging air bubbles that, according to the Bucketfeet website at www.bucketfeet.com, “cushion each step for maximum walking/dancing/turbo-kicking comfort”. Neither style has additional cushioning or support through the arch of the foot, but the Bucketfeet website at www.bucketfeet.com, confirms that the insoles are removable and can be replaced with insoles with more arch support. Both styles have extra cushioning around the collar of the shoe. The lace-up style also includes a light padding under the tongue. The cost of the footwear is said to be more than $12 per pair.
The subject merchandise was originally entered on June 1, 2013 under subheading 6404.19.90, 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 plastics: Other: Other: Valued over $12/pair.” On May 16, 2014, the subject merchandise was liquidated under subheading 6404.11.90, 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 plastics: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.” Protestant claims that the subject merchandise should be classified in subheading 6404.19.90, HTSUS, as entered.
ISSUE:
Whether the subject footwear constitute “athletic” footwear such as “tennis shoes, basketball shoes, gym shoes, training shoes and the like,” that are classified in subheading 6404.11, HTSUS, or “other” footwear of subheading 6404.19, 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 of the entry. (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. 0401-14-100073 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (NY) N242010, dated June 14, 2013 and NY N234459, dated November 16, 2012.
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 2013 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.
Treasury Decision (“T.D.”) 93-88, dated October 25, 1993, states, in pertinent part, that “athletic” footwear includes:
* * *
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 sequined or extensively embroidered uppers.
A “slip-on,” except gymnastic slippers.
Skate boots with ice or roller skates attached.
We note that this dispute is at the six-digit level of classification. We agree with the Protestant that the subject 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, 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.
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 Protestant concedes that the footwear “only resembles sneakers in some superficial ways,” it argues that the footwear would not be comfortable for extensive running, and that it is completely inappropriate for athletic activities.
Specifically, Protestant notes that: (1) the presence of the cushioning and padded tongue and collars enhance the wearer’s comfort while walking, making the subject footwear inappropriate for playing sports; (2) the soles of the subject footwear are dense and heavy, and while they bend at the toe, they are not flexible like those of a “sneaker”; (3) the soles are not designed to provide the level of traction required in a sporting activity and any traction that might be provided by the outer sole of the subject footwear is interrupted by the foxing band that reaches all the way to the ground; furthermore, the “Bucketfeet” imprint down the middle of the sole breaks up the texture of the sole; (4) the subject footwear includes several comfort features, appropriate for high-quality, casual footwear not intended for athletic use; besides the foxing and toe bumper, they do not include any anti-injury or otherwise protective features; (5) the lack of a reinforced toe box and the crafting on the outsole, which both reduce the amount of material used and stability, are examples of characteristics inherent in Bucketfeet’s shoes that make them completely inappropriate for athletic activities; and (6) while the subject footwear is not embroidered or sequined, the extensive and colorful printing is equivalent in purpose and effect, which shows that the subject footwear is not athletic.
First, we will address the lace-up style of 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 (Fed. Cir. 2014) 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 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.
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.
When determining whether footwear is classified as athletic footwear under subheading 6404.11, HTSUS, we look at various features including, but not limited to, overall appearance, materials, construction of the upper and construction of the 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 NY M82301, dated May 26, 2006. See also NY N020906, dated January 9, 2008. These features are characteristic of athletic footwear. However, athletic footwear need not exhibit all of these construction features. See NY N218203, dated June 6, 2012. See also NY N154085, dated April 4, 2011.
Upon review and examination of the samples of the lace-up style of footwear, we conclude that it has the general appearance and many of the construction features present in athletic footwear. We note that the soles of the lace-up style of footwear are not as dense and heavy as the Protestant claims, and they do have the flexibility needed to perform fast footwork. In fact, the Bucketfeet website at www.bucketfeet.com, indicates that the comfort feature massaging air bubbles “cushion each step for maximum walking/dancing/turbo-kicking comfort.” “Dancing” is defined as: “movement in a quick and lively way.” Dancing is also defined as “rapid, lively movement.” Turbo kick is described as follows: “Turbo Kick is a mix of kickboxing and hip hop dance moves that gets your heart pumping!”
In addition, the soles are designed to provide traction with horizontal ribbings and grooves throughout the outersole’s entire external surface area, interrupted only by more ribbings and grooves arranged to spell the word “Bucketfeet,” across the length of the bottom of the shoes. This feature adds to the traction control from different directions; moreover, the foxing band touching the ground hardly reduces the traction capabilities. Although the lace-up style of footwear has artist-designed screen printing on the textile canvas portions, they do not have any external decorations, such as sequins or beads, that could otherwise come loose and fall off. Finally, we note that athletic footwear can be comfortable and need not have any protective or anti-injury features. See NY M82301, dated May 26, 2006 (distinct features characteristic of athletic footwear are generally a lightweight textile material (usually canvas) upper, a lightweight, flexible rubber outersole that provides traction, lace-to-toe (or some other type of closure system to secure the footwear to the foot), under foot cushioning and padding on the tongue and collar). Thus, we find that the lace-up style of footwear has a general athletic appearance, foxing-like bands and underfoot cushioning that enable the wearer to engage in fast footwork, and the footwear is flexible and has a ribbed pattern traction outer sole. The lace-up style of footwear possesses all of the attributes that CBP considers characteristic of the exemplars named in Additional U.S. Note 2, above, and are therefore "like" those exemplars.
In its submission, Protestant argued that classification of the subject lace-up footwear as athletic is inconsistent with NY N242010, dated June 14, 2013. In that ruling, CBP found that certain women’s lace-up casual footwear with a rubber or plastics sole and a textile upper was not athletic footwear. CBP’s conclusion was based on the fact that the footwear at issue in NY N242010 did not have a traction outer sole capable of being used in athletic activities. In contrast, upon examination of the samples of the lace-up footwear provided, we find that the soles of the subject footwear are designed to provide traction with horizontal ribbings and grooves throughout the outersole’s entire external surface area, interrupted only by more ribbings and grooves arranged to spell the word “Bucketfeet,” across the length of the bottom of the shoes, which add to the traction from different directions. Accordingly, we conclude that the subject lace-up footwear can be distinguished from the footwear at issue in NY N242010.
Protestant also argued that classification of the subject lace-up footwear as athletic footwear is inconsistent with NY N234459, dated November 16, 2012. However, at issue in NY N234459 was a casual shoe lacking underfoot padding and any support for side-to-side movements. In addition, the sole of the footwear at issue in NY N234459 had a flat surface and lacked traction. Based on our findings above, including the fact that the subject lace-up footwear has thick cushioned insoles with massage bubbles, it can be distinguished from the footwear at issue in NY N234459.
Accordingly, we find that the lace-up style of 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.” See NY N002944, dated November 15, 2006; and NY N L88216, dated November 15, 2005.
Next, we will address the slip-on style of footwear. Based upon our examination of the slip-on style of footwear, although this style has many of the construction features found in the lace-up style of footwear discussed above, and present in athletic footwear, the slip-on style is designed to slip on the foot with no buckles, ties or other closures and is secured to the wearer’s foot with elastic gores on either side of the vamp. On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93–88, which contains certain footwear definitions used to classify footwear. The footwear definitions were provided merely as guidelines and, although consulted here, are not to be construed as CBP rulings. With respect to ‘‘athletic” footwear, T.D. 93–88 states, in relevant part, that “athletic” footwear does not include a “slip-on” shoe. We conclude that the slip-on style of footwear is not “athletic” footwear within the meaning of Additional U.S. Note 2 to Chapter 64, and is not described by the text of subheading 6404.11, HTSUS, as “tennis shoes, basketball shoes, gym shoes, training shoes and the like”. See NY N268295, dated September 11, 2015; and NY N266188, dated July 27, 2015.
Accordingly, we find that the slip-on footwear at issue is classified in 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.”
HOLDING:
By application of GRIs 1 and 6, the lace-up footwear styles Atypical, False Denim, Fuego, Patchwork, Waterloo, Austin, Orange Sherbert, Bad Panda, Navajo (Archer), Jayson Atienza, Masterpiece, Delta, Mesa Sunset, Fat Sugar, and Jayson are classified in heading 6404, HTSUS, and specifically in subheading 6404.11.90, 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 plastics: Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like: Other: Valued over $12/pair.” The 2013 column one general rate of duty is 20% ad valorem.
By application of GRIs 1 and 6, the slip-on footwear styles Caduras Pink, Like Butter Black, WTF, Vidaboa, Cabezas, Pasco 54, Tatau, Sixth Street, Earth, Reef, Pineappleade, Fuego 2, Nomad 2, Bamboo 2 and Pescao 2 are classified in heading 6404, HTSUS, and specifically in subheading 6404.19.90, 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 plastics: Other: Other: Valued over $12/pair.” The 2013 column one general rate of duty is 9% ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance.
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 reliquidation 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 website at 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