CLA-2 RR:CR:TR:TE 964980 JFS
John B. Pellegrini, Esquire Ross & Hardies 65 East 55th Street New York, New York 10022-3219
Re: Request for Reconsideration of NY G86979; Football Shoe, Artificial Turf, Not Sports Footwear.
Dear Mr. Pellegrini:
This letter is in response to your request for reconsideration of New York Ruling Letter (NY) G86979, dated February 27, 2001, on behalf of your client, Reebok International, Ltd., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of one style of indoor football shoe.
FACTS:
The shoe, “EJ 32 Turf Rat DMX MID, SRF #20-081701D,” is a man's lace up, covering the ankle football shoe, with an upper that is composed of leather, textile materials, and rubber/plastics. The external surface area of the upper is predominantly leather. The shoe's outsole is composed of rubber and/or plastics. The outsole is essentially covered with hundreds of closely spaced, cone-shaped features which project outward in distances measuring between approximately 1/16 of an inch to 1/8 of an inch from the surrounding area of the outsole. The shoe is said to be designed for use on artificial turf.
In NY G86979, Customs classified the football shoe under subheading 6403.91.60, HTSUSA, the provision for” Footwear with outer soles of rubber...and uppers of leather: Other footwear: Covering the ankle: Other . . .” The duty rate is 8.5% ad valorem.
You contend that the football shoe is classified under subheading 6403.19.40, HTSUSA, the provision for: “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Sports footwear: Other: For men, youths and boys: Other: Other.“ The rate of duty is 4.3%, ad valorem.
ISSUE:
Whether the football shoe designed for play on artificial turf is classified as "sports footwear." 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.
Chapter 64, HTSUSA, covers footwear, gaiters and the like and parts of such articles. Heading 6403 provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather. Subheading note 1(a) to chapter 64, HTSUSA, states:
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 provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like."
It has long been Customs position that subheading note 1 to chapter 64, HTSUSA, should be interpreted narrowly. See, for example, Headquarters Ruling Letters (HQ) 956942, issued November 7, 1994, HQ 955260, issued November 3, 1993, HQ 963451, issued August 10, 2000 and HQ 963526, issued November 21, 2000. You support a broad interpretation of the legal note. You contend that the subject shoes are "sports footwear" and that both requirements of subheading note 1(a) are satisfied because: 1) American football and soccer are sporting activities; and 2) the molded features which protrude from the outsoles are "like" some of the listed exemplars - "spikes, sprigs, cleats, stops, clips, bars" - all of which provide traction on specific types of surfaces.
Customs has recognized a range of activities such as rock climbing, bowling, hiking, riding, and hunting, as being sports or sporting activities, a consideration that is separate from the issue of whether the footwear designed for those activities constitutes "sports footwear". We of course consider each of the sports - American football and soccer - to be a "sporting activity." With respect to the footwear at issue, we note that the phrase which states that "’sports footwear’ applies only to:. . . ." in subheading note 1 to chapter 64, HTSUSA, conveys an intent to reasonably limit the array of footwear that is classified as "sports footwear." On this basis, Customs does not broadly interpret the exemplars "spikes, sprigs, cleats, stops, bars or the like." It is Customs position that the terms include projections that are attached to, or molded into, the soles of "sports footwear" in order to provide traction during outdoor sporting activities such as golf, field sports (e.g., baseball, soccer, American football, rugby, etc.), or track and field events. Customs has also considered crampons and similar attachments for rock and ice climbing boots to be comparable projections. We find that the listed exemplars, generally, are projections which possess relatively sharp points or edges that are designed to dig into turf or ice. (See, e.g., HQ 955014, issued April 11, 1994, and HQ 956942, issued November 7, 1994.) In order to effectively dig into turf or ice, such projections, generally, must also be spaced fairly widely apart. The physical characteristics and necessary placement of the exemplar projections tend to render everyday walking in sports footwear impractical.
You disagree with the rigidity of these interpretations and provide the following footwear-specific definitions of the terms "spike" and "cleat" from Rossi's The Complete Footwear Dictionary (1994). "Spike: A short, sharp metal piece protruding from the bottom of a shoe used for traction on track shoes." "Cleat: A knob or spike on the sole of a shoe for increased traction." You also offer the following definition of the term "sprig" taken from the Compact Edition of the Oxford English Dictionary (Oxford 1971). "Sprig: A small projecting part or a point." You submit that the common thread in the exemplars of subheading note 1(a) to chapter 64, is that each is designed to provide traction for the wearer on the surface on which a sport is played, and that the various projections on the shoes at issue are "like" the enumerated exemplars because they increase traction and stability for the surfaces on which football and soccer are often played.
The fact that "spike" is defined as a "sharp metal piece protruding. . ." and that "cleat" is defined as a "spike on the sole. . ." indicate that, to be "like" these exemplars, a projection should be rigid and sharp or pointed. The additional fact that the phrase "or the like" immediately follows the exemplar terms, suggests that the remaining exemplars (including "sprig," which apparently lacks a definition specific to footwear) are "like" one another in physical characteristics and the manner in which they provide traction.
You question our rationale in HQ 963526, dated November 21, 2000, wherein we state that:
The walking surface created by the closely spaced projections of each of the three styles of shoes is essentially uniform. It does not appear that everyday walking on flat, hard surfaces in these shoes would involve any discomfort. Although we find that the shoes are athletic footwear whose outsole features would provide increased traction on certain firm surfaces or artificial turf, these rubber/plastic projections are not "like" the spikes, sprigs, cleats, stops, clips, or bars associated with "sports footwear."
You contend that Customs has improperly imposed an additional requirement, that sports footwear cannot be used as “street wear,” that is not included in the HTUSA. The purpose behind looking at whether footwear is suitable for everyday walking is to see if the protrusions on the bottoms of the soles are “like” the spikes, sprigs, cleats, stops, clips, or bars which render everyday walking on hard flat surfaces nearly impossible.
You cite Kueffel & Essen Company v. United States, 7 CIT 389 (1984), for the proposition that “tariff provisions are not fixed in time but encompass the future. New articles are included provided they possess an essential resemblance to the article named in the tariff.” While this is true in most circumstances, in this case footwear designed for play on artificial turf existed at the time the language to subheading note 1(a) to chapter 64, HTSUSA, was drafted. Moreover, the Tariff Schedule of the United States (TSUS), the predecessor to the HTSUS, did not distinguish between sports footwear and athletic footwear. Under the TSUS, statistical headnote 1. (a) provided that: “the term ‘athletic footwear’ covers footwear of special construction for baseball, football, soccer, track, skating, skiing, and other athletic games, or sports[.]” Thus, the TSUS did not differentiate between athletic footwear and sports footwear. More importantly, the language of the TSUS did not possess the restrictive language requiring the “spikes, sprigs, cleats, stops, clips, bars or the like.” Congress, when drafting the HTSUS, demonstrated an intent that the provision for sports footwear be applied sparingly as evidenced by the fact that they distinguished between athletic footwear and sports footwear and by making sports footwear more restrictive. Congress, by not including a term that describes the protrusions on the instant footwear, demonstrated intent to exclude such footwear from the provision for sports footwear.
You also contend that the nubs on the soles of the instant shoes serve the same function or purpose as “spikes, sprigs, cleats, stops, clips and bars,” i.e., to increase traction. Customs does not disagree with this contention. However, this is a nearly a universal characteristic of the soles of all footwear. Shoes, especially shoes designed for specific activities are designed to provide the adequate amount of traction for the intended activity. For example, shoes designed for boating have unique soles that are designed specifically for the purpose of increasing traction on wet smooth surfaces. While boating shoes provide good traction on a boat’s deck, they provide little traction on natural grass. Another example is bowling shoes which have soles designed to provide the correct amount of traction to provide sure footedness yet also allow a certain amount of slide to assist with the bowler’s delivery. Accordingly, the fact that the instant football shoes are designed to increase traction is less important than is the means by which the traction is achieved.
HOLDING:
The football shoe, EJ 32 Turf Rat DMX MID, SRF #20-081701D, is classified in subheading 6403.91.60, HTSUSA, the provision for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear: Covering the ankle: Other: For men, youths and boys." The general column one duty rate is 8.5 percent ad valorem.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division