CLA-2 CO:R:C:G 085626 NLP
Mr. John M. Peterson
Neville, Peterson & Williams
39 Broadway, Suite 2201
New York, New York 10006
Re: Classification of bowling shoes
Dear Mr. Peterson:
Your letter dated August 24, 1989, addressed to our New York
office concerning the tariff classification of rental and resale
bowling shoes made in Taiwan, has been referred to this office
for a direct reply to you. Three samples were submitted for
examination.
FACTS:
The merchandise in question consists of rental and resale
bowling footwear. Three representative samples were submitted:
Style P-920: is a women's rental bowling shoe with a
velcro closure. It is composed of a soft, chrome-
tanned leather sole, a specially designed rubber heel,
and an upper composed almost entirely of polyvinyl
chloride plastic. Two eyelets on the side of each shoe
provide special ventilation for the wearer's foot.
The upper features special padding around the opening,
as well as reinforced stitching to hold the tongue of
the shoe to the upper. The shoe's size appears on the
outside of the shoe's heel. The shoe's upper has three
contrasting colors: red, blue and beige.
Style S-410: is a men's lace-on type rental bowling
shoe. It features a soft, chrome-tanned leather sole,
and a specially designed rubber heel. The shoe's upper
is composed of vinyl which is covered with a plastic
flocking material that gives the shoe a sueded
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appearance. Two eyelets on the side of the shoe
provide extra ventilation for the wearer's foot. The
shoe's size appears on the outside of the shoe's heel.
The shoe's upper features three different colors:
blue, gold and grey.
Style C-2000: is a men's lace-on type rental bowling
shoe. It features a soft, chrome-tanned leather sole,
and a specially designed rubber heel. The upper is
composed of polyvinyl chloride vinyl. A series of
holes on each side of the shoe provides ventilation for
the wearer's foot. The shoe's size is sewn on the back
heel. The upper features three colors: brown, tan and
black. Like the other styles, the C-2000 rental
bowling shoe features special reinforcement around the
toe and at the point where the tongue is attached to
the upper.
ISSUE:
Whether the bowling shoes are considered "Sports Equipment"
classifiable in Chapter 95 or as "Footwear" classifiable in
Chapter 64?
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General
Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined in accordance with the terms of the
headings and any relevant section or chapter notes.
Legal Note 1(g) to Chapter 95, HTSUS, states:
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.
Subheading Note 1 to Chapter 64 states:
1. For the purposes of subheadings 6402.11,
6402.19, 6403.11. 6403.19 and 6404.11, the
expression "sports footwear" applies only to:
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(a) Footwear which is designed for a sporting
activity and has, or has provision for the
attachment of spikes, sprigs, cleats, stops,
clips, bars or the like.
(b) Skating boots, ski-boots and cross-country
ski footwear, wrestling boots, boxing boots
and cycling shoes.
It is clear that the bowling shoes are not within the
definition of "Sports Footwear" pursuant to Subheading Note 1 to
Chapter 64. The question to be decided is whether Legal Note
1(g) to Chapter 95 should be interpreted as being limited to the
articles listed in Subheading Note 1 to Chapter 64.
It should be noted that the definition of "Sports Footwear"
in Chapter 64 is a subheading note, defining "Sports Footwear"
only for the purposes of 5 headings. It is not a chapter note.
This is quite unusual in the Harmonized System. It is our
observation that the point of this is that there is footwear
which is excluded from Chapter 95 as "Sports Footwear" and is
included in Chapter 64, but is not "Sports Footwear" for the
purposes of those five headings. It appears that the drafters of
the Harmonized System wanted to be absolutely sure that the items
covered by those 5 headings were unquestionably "Sports Footwear"
and were willing to leave out some others in the process. For
example, the ultra light racing shoes worn by marathon runners
are used only in the sport of marathon/road racing (and, to a
limited extent in training for it). However, they are clearly
not "Sports Footwear" for the 5 headings, but it is even clearer
that they are classified in Chapter 64. It is our view that the
same principle applies here, even though the bowling shoes are
even less capable of use outside its sport than the marathon
racing shoe.
In your papers, you argue that since automatic bowling alley
equipment is classified by name in HTS 9504 among "Articles of
Funfair, Table or Parlour games" and not in HTS 9506 as
"Articles and Equipment for Gymnastics Athletics, other Sports
(including Table Tennis) or Outdoor Games, not Specified or
included elsewhere in this chapter...", bowling is not a "sport"
and therefore, bowling shoes are not "sports footwear" for the
purposes of the exclusion from Chapter 95. It is clear to us
that Bowling is a sport. If we were to follow this reasoning, we
would likewise need to conclude that fishing and hunting
(provided for in heading 9507) are also not sports, an erroneous
conclusion merely because they are not classifiable in Heading
9506.
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Additionally, you indicate that the fact that bowling shoes
are typically sold to bowling alley proprietors, rather than
sold to the bowlers at retail, demonstrates that they are bowling
alley equipment. However, the fact that many, although not the
majority, are sold to individuals indicates that they are unlike
normal automatic bowling equipment. More importantly, the way
they are sold does not change the fact that they are footwear
which is clearly excluded from Chapter 95 to its more specific
description in Chapter 64.
Furthermore, you argue that bowling shoes are specialized
equipment that either improve the bowler's performance and/or
prevent damage to the surface he is on. This is also true of
many types of footwear. For example, Astro Turf shoes for
football improve the player's performance and prevent damage to
the surface he is on. These facts would not prevent either the
Astro Turf shoes or the bowling shoes from being classified as
footwear.
Finally, we do note that not all sports related items that
cover the foot are excluded from Chapter 95. For example, water
skis (which usually have a rubber foot stirrup attached) are
classifiable in subheading 9506.29.0020; skating boots with
skates permanently attached are classifiable in subheading
9506.70; snowshoes are classifiable in subheading 9506.99.50; and
divers' flippers are also named in the Explanatory Notes as being
covered by heading 9506. However, all these items derive their
essential character from an element of the item which is separate
and distinct from the portion which covers the foot. In
contrast, the bowling shoes do derive their essential character
from the portion that covers the foot. The bowling shoes
perform traditional footwear functions, like protecting the
wearer's foot and providing traction as the bowler bowls.
Therefore, the bowling shoes are classifiable in Chapter 64 as
footwear.
HOLDING:
It is Custom's position that the bowling shoes are
classifiable in Chapter 64, not Chapter 95. They are
classifiable in subheading 6405.90.90, which provides for Other
footwear: Other: Other, whose uppers are of rubber or plastics
and whose outer soles are leather. The rate of duty is 12.5% ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division