H302976

HQ H302976 January 11, 2022 OT:RR:CTF:FTM H302976 TSM CATEGORY: Classification TARIFF NO.: 6404.11.90 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 plas

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 gymnas