HQ 964985

July 15, 2002

CLA-2 RR:CR:TE 964985 JFS

CATEGORY: Classification

TARIFF NO.: 9506.70.20

Janet A. Forest, Esq.

Miller & Chevalier

655 Fifteenth Street, N.W.

Suite 900

Washington, D.C. 20005-5701

RE: Revocation of NY G85697, dated January 19, 2001; Classification of
Skate Shoe; Chapter 95; Roller Skates.

Dear Ms. Forest:

This letter is to inform you that Customs has reconsidered New York
Ruling Letter (NY) G85697, issued on behalf of your client, Heeling
Sports, Ltd., on January 19, 2001, concerning the classification under
the Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
of skate shoes. After review of that ruling, it has been determined that
the classification of the skate shoes in subheading 9506.99.6080,
HTSUSA, was incorrect. For the reasons that follow, this ruling revokes
NY G85697.

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. 103-82,
107 Stat. 2057, 2186), notice of the proposed revocation of NY G85697
was published on June 12, 2002, in the *[Customs Bulletin]{.smallcaps},
Volume 36, Number 24*. As explained in the notice, the period within
which to submit comments on this proposal was until July 19, 2002. No
comments were received in response to this notice.

FACTS:

The article that is the subject of this revocation is a skate shoe. In
NY G85697, it was classified in 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 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.

ISSUE:

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:

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]{.underline}, 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]{.underline} 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]{.underline}, 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]{.underline}, 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]{.underline}, 44 CCPA
60, C.A.D. 638 (1957).

The instant case is similar to that faced by Customs in Headquarters
Ruling Letter (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]{.underline}, 9 CIT 227, 229 (1985), in which the Court
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]{.underline}. "Congress could not have intended to
> foreclose future innovations in \[goods\] from classification under
> the \[eo nomine\] provisions." [Simmon Omega, Inc. v. United
> States]{.underline}, 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.

HOLDING:

NY G85697 is dated January 19, 2001, is hereby REVOKED. In accordance
with 19 U.S.C. §1625(c), this ruling will become effective 60 days after
its publication in the [Customs Bulletin.]{.smallcaps}

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.

A copy of this ruling letter should be attached to the entry documents
filed at the time this merchandise is entered. If the documents have
been filed without a copy, this ruling should be brought to the
attention of the Customs officer handling the transaction.

> Sincerely,
>
> Myles B. Harmon, Acting Director
>
> Commercial Rulings Division