H304876

 HQ H304876 December 7, 2020 OT:RR:CTF:FTM H304876 TJS CATEGORY: Classification TARIFF NO.: 6404.11.90 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 

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, i