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HQ H012677




February 15, 2008

CLA-2 OT: RR: CTF: TCM H012677 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.90

Judith Haggin
J.L. Haggin & Associates Co.
1100 S.W. Sixth Ave.
Suite 212
Portland, OR 97204

RE: Request for reconsideration of New York Ruling Letter L85922, dated August 2, 2005; Classification of the Aquatic Training Shoe

Dear Ms. Haggin:

This letter is in response to your request of May 15, 2007, for reconsideration of New York Ruling Letter (NY) L85922. In that ruling, Customs and Border Protection (CBP) determined that the subject Aquatic Training Shoes are classifiable under subheading 6404.11.90, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY L85922 and found it to be correct.

FACTS:

The subject articles, identified as “Model Mako, Style AQx1001,” (Aquatic Training Shoe/ATS) are athletic-type shoes designed for water fitness and sold by the importer, AQx, Inc. They are marketed for use in vigorous activities such as running in water or aqua aerobics. The shoes have a predominately textile material upper that does not cover the ankle, with a rubber/plastics material external surface area structural reinforcements at the toes and along the sides and eyelet stays at the back. The shoes also feature a functional lace closure complete with an adjustable plastic cinch stop to tighten and hold the shoe on the foot.

There are three, semi-rigid rubber/plastic wing-like protrusions, or “gills,” on both sides of the upper’s external surface and the shoe has a cemented-on, unit molded rubber/plastic material bottom/sole that overlaps the upper. These “gills” provide resistance when exercising in water and may also make walking on land for extended periods of time impractical. The shoes are valued at over $12 per pair.

In your submission, you argue that CBP’s determination in NY L85922 was incorrect and that the Aquatic Training Shoe is properly classified under heading 9506, HTSUS, as equipment for general physical exercise.

ISSUE:

Are the Aquatic Training Shoes (ATS), Model Mako, Style AQ1004, classifiable as sports equipment of heading 9506, HTSUS, or are they classifiable in heading 6404, HTSUS, as footwear?

LAW AND ANALYSIS:

Classification under the HTSUSA 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

9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this Chapter; swimming pools and wading pools; parts and accessories thereof: Other:
9506.91.00 Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof. 9506.91.0030 Other

In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or Chapter notes. Note 1 to Chapter 95 provides, in pertinent part:

1. This Chapter does not cover:
(g) Sports footwear (other than skating boots with ice or roller skates attached) of Chapter 64, or sports headgear of Chapter 65.

  Note 1 to Chapter 64 provides, in pertinent part: This Chapter does not cover:
 (f) Toy footwear or skating boots with ice or roller skates attached; shin-guards or similar protective sportswear (Chapter 95).

The subheading Note to Chapter 64 provides:

For the purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and 6404.11, the expression “sports footwear” applies only to:

Footwear which is designed for a sporting activity and has, or has a provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like;

Skating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and cycling shoes.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 9506 (EN 95.06), HTSUS, provides, in pertinent part:

This heading covers:
(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.: (2) Water-skis, surf-boards, sailboards, and other water-sport equipment, such as diving stages (platforms), chutes, drivers’ flippers and respiratory masks of a kind used without oxygen or compressed in air bottles, and simple underwater breathing tubes (generally known as “snorkels”) for swimmers or divers. (13) Protective equipment for sports or games, e.g. fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards.

The heading excludes: 

(g) Sports footwear (other than ice or roller skating boots with skates attached) of Chapter 64 and sports headgear of Chapter 65.

(Emphasis in original)

At issue is whether the ATS are identifiable as “sports footwear” or as “articles and equipment for general physical exercise.” The legal notes to Chapters 64 and 95 are mutually exclusive, i.e., footwear of Chapter 64 is excluded from classification in Chapter 95, while articles of general physical exercise of Chapter 95 are excluded from classification in Chapter 64

Toy footwear and skating boots with blades or wheels are not excluded from classification in Chapter 95.. Classification of the subject article in one of the suggested headings prima facie excludes it from the other.

In your request for reconsideration, you argue that the product at issue is clearly designed, marketed, sold and used as an article for physical exercise. Specifically, you state that “the design itself does not provide for the Sports Aquatic Training ‘shoe’ to be worn as footwear.” The “primary function of this article is to provide a means of attaching plastic gills located on the outside of the shoe to the foot, rather than to cover the foot.” According to EN 95.06, however, the determining factor in classification is whether the subject shoes are “requisites for other sports and outdoor games.” Although the manner in which a product is marketed, sold and used is relevant, it is a secondary consideration.

The language of the HTSUS evidences intent that not all articles for use in sports are classified under heading 9506, HTSUS. The ENs to heading 9506 state that the heading covers three categories of merchandise: (A) Articles and equipment for general physical exercise, gymnastics or athletics; (B) Requisites for other sports and outdoor games; and (C) Swimming and paddling pools. Category (B) includes: “water-skis, surf-boards, sailboards, and other water-sport equipment,” and “protective equipment for sports or games.” See EN 95.06(B)(2) and (13), emphasis added. However, certain sports-related articles for use in sports are specifically excluded from Chapter 95, HTSUSA. For example, Note 1 to Chapter 95, HTSUSA, excludes sports footwear of Chapter 64. See HQ 967957, dated December 9, 2005. Although sports footwear may be used for water-sports, the ENs make clear that it is not a “requisite for other sports and outdoor games” within the meaning of heading 9506, HTSUS.

CBP has previously considered the classification of water-sports accessories and apparel. In HQ 088542, dated May 1, 1992, an importer filed a protest after certain wetsuits, footgear, headgear and gloves were excluded from heading 9506, HTSUS, and classified instead in eo nomine headings. In determining that the imports were excluded from heading 9506, HTSUS, we noted:

Customs has classified within heading 9506, HTSUSA, certain articles which protect or pad persons from the shock of blows, such as fencing masks or equestrian body protectors. This does not extend to textile garments worn while engaged in a sport, such as fencing suits or racing silks, or other more ordinary sports clothing which may also be required for participation or competition in sports activities. A distinction exists among the headings of the nomenclature between clothing (including protective clothing) and protective equipment.
wetsuits are specialized articles of sports clothing. The presence of protective features does not preclude classification as a garment. Protestant's arguments that limitations on use and restraint of movement are also unpersuasive. Like other types of protective clothing, we do not consider it unusual that wetsuits are not the most comfortable garments or may be limited to specific sporting activities.

By an analysis parallel to that described above, footwearmade from neoprene/textile laminate and designed for use in a water-sport activity [is] not classifiable as "water-sports equipment", but [is] classifiable as sports footwear.

See also HQ 963430, dated July 10, 2001 (Excluded "Typhoon Booties,” designed for road or mountain bicycling from heading 9506, HTSUS. Although the boots protected against cold or water, they were not functionally similar to the examples of protective equipment classifiable under heading 9506, which are designed to ward of kicks, blows, stabs of a foil, etc.); and NY L89514, dated January 18, 2006 (Finding Foot Waders were classifiable in heading 6405, HTSUS, and excluded from heading 9506, HTSUS, because they did not contain any padding for protection against injury from blows, collisions, or flying objects. Consequently, they were not considered sports equipment).

Applying the above-administrative precedent, and EN 95.06, we find that the subject Aquatic Training Shoes are not “requisites for sports or outdoor games. While the shoes are “protective” in the sense that they act as a barrier to certain elements, they are not similar to the protective exemplars referenced in the ENs to heading 9506, HTSUS. They do not feature any padding for protection against injury from blows or collisions. Furthermore, they are not a requirement for water-sports. As stated by the importer, the “primary function of this article is to provide a means of attaching plastic gills located on the outside of the shoe to the foot.” These plastic gills increase the beneficial effects of activities such as aqua aerobics or water running but are not necessary to engage in such activities.

Although the “gills” make walking on land impractical, this fact alone does not necessitate classification in heading 9506, HTSUS. As noted in HQ 088542 “arguments [concerning] limitations on use and restraint of movement areunpersuasive. Like other types of protective clothing, we do not consider it unusual that [the footwear]may be limited to specific sporting activities.”

We next consider whether the Aquatic Training Shoes meet the definition of “sports footwear” as set forth in the subheading note to chapter 64. That note requires that sports footwear must be “designed for a specific sporting activity” and must have, or provide for, “the attachment of spikes, sprigs, cleats, stops, clips, bars or the like.” Gills are not specifically named in this list of exemplars. Classification under the second provision of this note is therefore dependent upon the cannon of construction known as ejusdem generis, which means literally, “of the same class or kind.” “Where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157.

We will first consider whether the subject Aquatic Training Shoes are “designed for a specific sporting activity.” According to your submission, the subject imports are designed to be worn specifically for “deep water running, aqua jogging, water plyometrics and aqua therapy.” The subject imports therefore satisfy the first requirement of the subheading note. In addition, the import satisfies the second requirement of the note. All of the named exemplars are attachments that are designed to assist with certain aspects of a sporting activity. Cleats, for instance, assist in gripping the surface, preventing sliding and assisting in rapid changes of direction. Spikes maximize traction when running, throwing or jumping. Similarly, according to your submission, the gills are specifically designed to “allow the training shoe to add resistance to deep water running.The resistance created by the gills allows an athlete to activate more muscle groups, burn more calories, increase metabolic cost, and ultimately provide an intense cardiovascular workout.” These gills share the same essential characteristic as the exemplars enumerated in the subheading note to chapter 64, i.e., they are designed to assist with certain aspects of a sporting activity. By application of ejusdem generis, the subject Aquatic Training Shoes, with attached gills, are identifiable as “sports footwear” of heading 6404, HTSUS.

This conclusion is supported by the manner in which the subject imports are marketed and sold. They are advertised as being “an innovation in footwear and resistance training, See http://www.aquatic-exercise-equipment.com” and as being specifically designed to allow swimmers to “benefit from the increased metabolic work that can be accomplished by wearing the ATS in many ways See http://www.kastawayswimwear.com.”

HOLDING:

The subject ATS are classifiable 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 2008 general, column one rate of duty is 20 percent ad valorem.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY L85922, dated August 2, 2005, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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