H285615

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H285615 November 23, 2020 OT:RR:CTF:FTM H285615 TJS CATEGORY: Classification TARIFF NO.: 6404.11.90 Mr. Sean Connor Under Armour, Inc. 1020 Hull Street Baltimore, MD 21230 RE: Reconsideration of NY N279073; Tariff Classification of footwear from China Dear Mr. Connor: This letter is in response to your request of February 28, 2017, for reconsideration of New York Ruling Letter (“NY”) N279073, dated September 30, 2016, issued to Under Armour, Inc., as it pertains to the tariff classification of certain footwear under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S. Customs & Border Protection (“CBP”) classified the subject footwear in heading 6404, HTSUS, and subheading 6404.19.20, HTSUS, which provides for: “[f]ootwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: Other.” For the reasons stated below, we are revoking NY N279073. In reaching this decision, we have also considered arguments presented in a supplemental submission submitted by your legal counsel on August 16, 2017. This decision is also based on our inspection of samples included with your original ruling request and with your reconsideration request. 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 of the proposed action was published in the Customs Bulletin, Vol. 54, No. 41, on October 21, 2020. No comments were received in response to the notice. FACTS: In NY N279073, the merchandise was described as follows: [T]he submitted sample, identified as style number/name 1288065 UA W Drift RN Mineral, is a woman’s, light-weight, closed-toe/closed-heel, below-the-ankle shoe, with a flexible outer sole of rubber or plastics. The external surface area of the upper is predominantly textile material. It is a slip-on shoe that does not have a separately attached tongue. The mostly unsecured leather overlay, which incorporates the eye stays and threaded laces, is stitched to the upper with a few stitches on the medial and lateral sides. It is lasted at the sole, extends toward the heel of the shoe, and is stitched near the back of the heel. This semi-attached overlay constitutes an accessory or reinforcement and not considered in the external surface area measurements. The shoe features a rubber/plastic toe cap, a leather heel patch, and a pull tab. The shoe does not have a foxing-like band. The rubber or plastics outer sole accounts for more than 10 percent of the total weight of the shoe. You provided an F.O.B. value of $21.41 per pair. In addition to the features described above, the samples contain a cushioned collar and a midsole made of ethylene-vinyl acetate (EVA), a lightweight and soft foam. The outsole is made of durable rubber material and incorporates rubber pods and four rows of flex grooves. In your supplemental submission, you state that the shoes are designed and marketed as running shoes. ISSUE: What is the tariff classification of the subject footwear? LAW AND ANALYSIS: Classification under the HTSUS is made 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 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: For women: 6404.11.9050: Other. * * * * * 6404.19: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other: 6404.19.39: Other: Other: 6404.19.3960: For women. * * * * * 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). T.D. 93-88 further provides that a “slip-on” includes: A boot which must be pulled on. Footwear with elastic gores which must be stretched to get it on or with elastic sewn into the top edge of the fabric of the upper. Footwear with a shoe lace around the top of the upper which is clearly not functional, i.e., the lace will not be tied and untied when putting it on or taking it off. It does not include any boot or shoe with any laces, buckles, straps, snaps, or other closure, which are probably closed, i.e. tied, buckled, snapped, etc., after the wearer puts it on. Id. * * * * * In your request for reconsideration, you state that while you agree with the majority of the assessment in NY N279073, you assert that the shoe is not a “slip-on.” You state that while the shoe is not designed with a separate tongue, the shoelaces are an essential element to the function of the shoe. You further state that the shoe is designed to be used as a running shoe and the shoelaces serve as a tightening mechanism, which are necessary to secure the foot and prevent the runner from injuring his or her ankle. You assert that the shoe is properly classified in subheading 6404.11.90, HTSUS, which provides for “[f]ootwear 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 dispute is at the six-digit level of classification. The footwear is described by the terms of heading 6404, HTSUS, which provides for “[f]ootwear with 

Classification under the HTSUS is made 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 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: For women:6404.11.9050: Other.* * * * *6404.19: Other: Footwear with open toes or open heels; footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners, the foregoing except footwear of subheading 6404.19.20 and except footwear having a foxing or foxing-like band wholly or almost wholly of rubber or plastics applied or molded at the sole and overlapping the upper: Other:6404.19.39: Other: Other:6404.19.3960: For women. * * * * *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,