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HQ 965431




July 15, 2002

CLA-2 RR:CR:TE 965431 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.70.20

Port Director
U.S. Customs Service
Los Angeles -- Long Beach Seaport
301 East Ocean Blvd.
Long Beach, California 90802

RE: Decision on Application for Further Review of Protest No. 2704-01-103309; Classification of Skate Shoe with One Wheel

Dear Sir/Madam:

This is a decision on an application for further review (AFR) of a protest filed on November 28, 2001, by W.J. Byrnes & Co. of LA, Inc., on behalf of Heeling Sports, Ltd. The protest concerns the classification and liquidation of entries of skate shoes which were entered in 2001. The protest involves the same merchandise that was ruled upon in New York Ruling Letter (NY) G85697, dated January 19, 2001, which is under reconsideration. The submission and sample provided in conjunction with the request for reconsideration were relied upon for the purposes of this ruling.

FACTS:

It is asserted that six entries of merchandise are the subject of this protest that was filed on November 28, 2001. Two entries were liquidated on November 16, 2001. One entry was liquidated on each of the following dates: November 30, 2001; December 21, 2001; January 11, 2002; and January 18, 2002.

You classified the entered merchandise under subheading 9506.99.6080, HTSUSA, which provides, in pertinent part, for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports : Other: Other: Other, Other.” The general column one rate of duty is 4 percent ad valorem.

The protestant contends that the merchandise is classified under subheading 9506.70.2010, HTSUSA, which provides, in pertinent part, for “Ice skates and roller skates, including skating boots with skates attached; parts and accessories thereof: Roller skates and parts and accessories thereof, Attached to boots.” The general column one rate of duty is Free.

The provided sample, termed a “heeling apparatus” and further identified as the Heelys™ skate shoe, consists of what appears to be a traditional athletic shoe with a heavy sole. The heel portion of the sole is hollowed out in order to house a polyurethane wheel and wheel assembly. The wheel extends approximately one half inch outward from the sole of the shoe and does not retract into the shoe. The wheel and wheel assembly are easily removed. The Heelys™ skate shoes are used by the wearer by placing one foot in front of the other as if he/she were in full stride. The person’s weight centers on the wheel of the rear skate shoe. The rear foot is angled so that the toe of the shoe does not come into contact with the ground. The front foot is also angled so that only the wheel is in contact with the ground. The rear wheel operates as the main rolling wheel and the front wheel provides balance and steering.

ISSUES:

1. Whether the four entries liquidated after November 28, 2001, were protested in a timely manner.

2. Whether the Heelys™ skate shoe with one removable wheel in the heel of the shoe is classifiable under the provision for roller skates.

LAW AND ANALYSIS:

1. Whether the four entries liquidated after November 28, 2001, were protested in a timely manner.

The classification of imported merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). A protest may be filed against the classification and rate and amount of duties chargeable, if the protest is filed within, but not before, 90 days of liquidation of the entry of the merchandise. See, 19 U.S.C. §1514(a)(2).

In the present case, 2 of the subject entries were liquidated on November 16, 2001. This protest was filed on November 28, 2001, which is within the 90-day period provided for in 19 U.S.C. § 1514. However, the remaining four entries were liquidated on four separate dates after November 28, 2001. The protest on the liquidation of these four entries was not timely filed for purposes of section 1514. The protest filed against the liquidation of these four entries is premature, as liquidation had not occurred prior to the filing of the protest on November 28, 2001.

The applicable statute, 19 U.S.C. § 1514, fixes a definite time within which a protest may be filed. The requirement that protests be filed within 90 days after but not before notice of liquidation or reliquidation or the date of the decision protested has been well established by the Courts. See The Best Foods, Inc. v. United States, 37 Cust. Ct. 1, 9-10, 147 F. Supp. 749, C.D. 1791 (1956) (prematurely filed protest dismissed); United States v. Reliable Chemical Co., 66 CCPA 123, 605 F. 2d 1179, C.A.D. 1232 (1979) (prematurely filed protest, filed after a "courtesy" notice advising of scheduled liquidation but before the date of the bulletin notice of liquidation, dismissed in appellate decision reversing lower court's denial of motion to dismiss); and McDonnell Douglas Corp. v. United States, 75 Cust. Ct. 6, 465 F. Supp. 1291, C.D. 4604 (1975). See also, HQ 224846, dated February 17, 1994; HQ 226891, dated January 8, 1997; and HQ 227844, dated March 5, 1998. Accordingly, the four entries liquidated after November 28, 2001, are not timely for the purpose of this protest, and the protest for these four entries should be denied.

2. Whether the Heelys™ skate shoe with one removable wheel in the heel of the shoe is classifiable under the provision for roller skates.

Classification under the HTSUSA 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The skate shoe has the attributes of a traditional roller skate and the attributes of an athletic shoe. Under a GRI analysis, it is, at times, necessary to determine whether the essential character of a good such as the skate shoe is imparted by the wheel or by the shoe. In this case, however, note 1(f) to chapter 64, and Note 1(g) to Chapter 95, render an essential character analysis unnecessary. In pertinent part, Note 1(f) to chapter 64, states that “This chapter does not cover toy footwear or skating boots with ice or roller skates attached. . . .” Note 1(g) to chapter 95 states, in pertinent part, that “This chapter does not cover: Sports footwear (other than skating boots with ice or roller skates attached) of chapter 64. . . .” Accordingly, if it is determined that the Heelys™ skate shoe is a roller skate for classification purposes, chapter 64 is precluded from consideration.

The central issue is whether the Heelys™ skate shoe is encompassed by the term “roller skates, including skating boots with skates attached.” The definition of that term under the HTSUSA is uncertain. We find no clear definition in the Legal Notes and EN. Lexicographic sources define a “roller skate” as follows:

Merriam-Websters Collegiate Dictionary, defines a roller skate as “[a] shoe with a set of wheels attached for skating over a flat surface.” Available at http://www.m-w.com/cgi-bin/dictionary. Encarta defines a roller skate as:

1. Set of wheels attached to shoe: a metal or plastic frame with wheels attached, usually one pair at the front and another at the back, fastened onto a shoe and used for skating.

2. Shoe for roller-skating: a specially designed shoe or boot to which a roller skate is attached.

Available at http://dictionary.msn.com/find/ (May 1, 2002).

While these definitions generally contemplate skates with more than one wheel, they do not necessarily preclude the determination that a shoe with only one wheel can be considered a roller skate for tariff classification purposes. The idea for a roller skate with one wheel dates back at least as far as 1877. In an English patent application, dated June 13, 1877, the inventor describes his idea for a skate with one wheel as follows: “My invention relates to an improved construction of roller skates, wherein each skate is provided with a single wheel or roller placed in the axial line of the foot plate.” Patent No. 2297. The accompanying diagram depicts a skate with only one wheel. Likewise, the protestant describes the Heelys™ skate shoe as a roller skate in a trademark application, dated June 2, 2000. The skate shoes were described as “Roller skates equipped with at least one roller used for walking, running and rolling.” Application for Trademark Registration, Attorney Docket No.: 4261.15 (trademark application allowed, May 23, 2001, Serial. No. 75/962102). While one-wheeled roller skates may not have been actively manufactured and marketed on a grand scale, the idea has been around for many years.

Turning to the common and commercial meaning of the term “roller skate” we are aware that the production of the Heelys™ skate shoe is such a recent development in the sport of skating, that it may not have been contemplated when any of the usual authorities (legislative history, dictionaries, etc.) were created. That it may be associated with the eo nomine provisions of subheading 9506.70.20, HTSUSA, is clear under several well settled tenets of Customs law: Eo nomine classification is not necessarily limited by the juxtaposition of descriptive words; an eo nomine designation will include all articles subsequently created which come within its scope. Sears Roebuck & Co., v. United States, 46 CCPA 79, C.A.D. 701 (1959); Eo nomine designation of a class will include all members of the class, as if provided by name, Robert Bosch Corporation, et al v. United States, 63 Cust.Ct. 187, C.D. 3895 (1969); and an eo nomine designation, without limitation will include all forms of the article. T.M. Duche & Sons, Inc., et al v. United States, 44 CCPA 60, C.A.D. 638 (1957).

The instant case is similar to that faced by Customs in HQ 086626, dated January 15, 1991, wherein Customs classified snowboards. At the time, the only tariff provision that came close to describing snowboards was the provision for skis. In ruling on the matter, Customs took note that the tariff is not set in time and that tariff provisions can encompass new articles that were not invented at the time of the drafting. Customs asked: How then do we determine the classification of a new and novel article of commerce heretofore unknown under the current nomenclature? In particular, how do we determine whether that product is included under an existing nomenclature provision?

To help resolve the issue, Customs relied upon FAG Bearings, Ltd. v. United States, 9 CIT 227, 229 (1985), which stated that:

The basic requirement for classification of a new product such as these, under a given eo nomine heading is that the article possess an essential resemblance to the one named in the statute. If the essential character of the article is preserved or only incidentally altered, an unlimited eo nomine designation will include the goods.

Customs concluded that “although differences exist between snowboard skis and traditional alpine skis, they do not act as a bar to classification as other skis of subheading 9506.11.4000, HTSUSA.”

The major feature that a Heelys™ skate shoe has in common with a roller skate is that it is to be worn on a person’s foot to enable the wearer to roll by means of self-propulsion. In order to accomplish this, the Heelys™ skate shoe incorporates many of the same features of a traditional roller skate as well as the newer in-line skates. These features are, a heavy duty reinforced sole, a polyurethane wheel, an axle mechanism and ball bearings to provide a smooth and easy ride. Moreover, similar skills are required for “Heeling” as are required for roller-skating. As when snowboards were first compared to traditional alpine snow-skis, Heelys™ skate shoes differ noticeably from traditional roller skates. However, they do possess an essential resemblance to roller skates, and the differences between the two should not act as a bar to their classification as roller skates of subheading 9506.70.20, HTSUSA.

Customs has consistently classified new and similar articles such as in-line skates in subheading 9506.70.20, HTSUSA. Customs has classified skate shoes containing a set of retractable wheels as roller skates. See NY C85189, dated March 11, 1998 (classifying as a roller skate a “Walk and Roll” shoe/skate that could be converted between a walking shoe and a skate by the retraction of one or two roller mechanisms); NY F81566, dated January 13, 2000 (classifying as a roller skate a leather shoe or boot with two holes in the rubber sole where a retractable skate mechanism was attached); and NY H83263, dated July 19, 2001 (classifying as a roller skate a sneaker-like article with front and rear wheel mechanisms that were retractable).

To hold that the term "roller skate” in marketing and sporting circles is restricted to the traditional concept of pairs of wheels, is to ignore an important function of the tariff schedule, namely to provide eo nomine classification for most of the articles in international trade. HQ 086626, dated January 15, 1991. “Tariff provisions should be open to the invention of new and different products.” Id. “Congress could not have intended to foreclose future innovations in [goods] from classification under the [eo nomine] provisions.” Simmon Omega, Inc. v. United States, 83 Cust.Ct. 14, C.D. 4815 (1979). “To hold otherwise would result in the classification of any and every new product in the basket provisions of the nomenclature.” HQ 086626.

The instant skate shoe is classified in subheading 9506.70.20, HTSUSA, the provision for roller skates. In NY G85697, Customs classified the instant article in the “other” provision of subheading 9506.99.6080, HTSUSA. Customs is of the opinion that NY G85697, dated January 19, 2001, is in error and was revoked by HQ 964985. A copy of the final revocation notice is attached.

HOLDING:

The Heelys™ skate shoe is classified under subheading 9506.70.20, HTSUSA, which provides, for “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: Ice skates and roller skates, including skating boots with skates attached; parts and accessories thereof: Roller skates and parts and accessories thereof. The general column one rate of duty is Free.

The protest should be DENIED, except to the extent that reclassification of the merchandise as indicated above results in a PARTIAL ALLOWANCE. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution.

Sincerely,

John Durant, Director

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