CLA-2: RR:CR:TE: 966915 BtB
Port Director
Bureau of Customs and Border Protection
11099 South La Cienega Blvd. Los Angeles, CA 90045
RE: Decision on Application for Further Review of Protest No.
2720-03-100142; Rock climbing shoes not “sports footwear”
Dear Port Director:
This is a decision on the Application for Further Review (“AFR”) of Protest Number 2720-03-100142, timely filed by Sonnenberg & Anderson on April 25, 2003, on behalf of Excalibur Distribution, Inc. (“Excalibur”), importer of record, and Red Chili International, Ltd. (“Red Chili”), exporter, concerning the classification of 6 styles of Red Chili brand rock climbing shoes entered in 2002. In this decision, Excalibur and Red Chili will together be referred to as “the interested parties” or “protestant.”
FACTS:
The 6 styles of Red Chili rock climbing shoes at issue are: “Spirit, Torro, Habanero, Voodo, Dos Equis and Sausalito.” In this decision, the styles will collectively be referred to as “the Red Chili rock climbing shoes.” Each of the models is composed of uppers of leather and rubber/plastics and rubber soles with a rubber edging overlay, or rand. The Red Chili rock climbing shoes are made in Italy. Samples of the 6 styles of rock climbing shoes were examined and returned to Sonnenberg & Anderson by the Bureau of Customs and Border Protection (“CBP”) National Commodity Specialist Division (“NCSD”). No external surface area of the upper (“ESAU”) percentage measurements were provided with the samples.
According to protestant, shipments of the 6 styles were previously entered through the Port of San Francisco under subheading 6403.19.7091, HTSUSA, as “other sports footwear” at a “free” rate of duty. Subsequently, CBP in San Francisco issued a Notice of Action and liquidated the merchandise under subheading 6402.99.9030, HTSUSA, with a 20% rate of duty.
Concerning the entries that are the subject of this AFR, entered through the Port of Los Angeles (xxx-xxxxxxx-x on 5/20/02, xxx-xxxxxxx-x on 5/30/02, and xxx-xxxxxxx-x on 6/14/02), the 6 styles were classified under subheading 6402.99.9030, HTSUSA, based on the action by CBP in San Francisco. These Los Angeles entries were liquidated on 4/4/03, 4/11/03 and 4/25/03, respectively.
The interested parties protest the liquidation of the subject merchandise under subheading 6402.99.90, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $12/pair.”
ISSUE:
Is the merchandise classified under heading 6403, HTSUSA, as “Sports Footwear” or under heading 6402, HTSUSA, as “Other footwear with outer soles and uppers of rubber or plastics”?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Protestant asserts that the Red Chili rock climbing shoes should be classified under subheading 6403.19.7091, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Sports footwear: Other: For other persons: Other, Other.”
Subheading Note 1 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;
Skating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and cycling shoes.
In NY H87213, dated February 2, 2002, a pair of American football shoes and two pairs of soccer shoes were held not to be classifiable as “sports footwear” because their sole projections were found not to constitute “cleats” under subheading note 1 to Chapter 64, HTSUSA. In NY H87213, we noted our long-standing strict interpretation of what constitutes “sports footwear”:
It has long been Customs position that subheading note 1 should be interpreted narrowly. We note that the phrase which states that “’sports footwear’ applies only to...” conveys an intent to reasonably limit footwear classified as “sports footwear.”
Customs interpretation of the terms spikes, sprigs, cleats, stops, bars or the like in regards to “sports footwear” has generally been to include projections attached to, or molded into, the soles of sports footwear to provide traction during outdoor sporting activities such as golf, field sports, (baseball, soccer, American football, rugby etc.) or track & field events. In addition, crampons and similar attachments for rock/ice-climbing boots have also been included as fitting the definition of these terms. However, outdoor recreational footwear, with traction studs, lugs or similar sole projections, suitable for everyday walking have not been considered “sports footwear” as these projections are unlike spikes, sprigs, cleats, stops, clips, bars or the like. It is further our interpretation that all the exemplars listed in the note have relatively sharp points or edges which are designed to dig into the ground (turf or ice). In order to effectively dig into turf or ice, such projections, generally, must be spaced fairly widely apart. The physical characteristics and necessary placement of the exemplar projections tend to render everyday walking in sports footwear impractical.
We agree with protestant’s assertion that rock climbing is a sporting activity. However, it does not follow that because rock climbing is a sporting activity, rock climbing footwear constitutes “sports footwear” under Subheading Note 1 to Chapter 64, HTSUSA. As noted in HQ 963465, dated November 20, 2000, the consideration of what constitutes a sporting activity is a separate consideration from this issue of whether footwear designed for those activities constitutes “sports footwear.” Not all footwear used for a sporting activity constitutes “sports footwear” under Subheading Note 1 to Chapter 64, HTSUSA.
For example, soccer and American football are indisputably sporting activities. Yet, in NY H87213, a pair of American football shoes and two pairs of soccer shoes were held not to be classifiable as “sports footwear” because they did not meet the definition set forth in Subheading Note 1 to Chapter 64, HTSUSA. The soccer and American football shoes in the ruling were instead held to be classifiable under heading 6402, HTSUSA, as “Other footwear with outer soles and uppers of rubber or plastics.” Also see, for example, HQ 964980, dated July 12, 2002, in which an American football shoe was classified in subheading 6403.91.60, HTSUSA, and not as “sports footwear;” and HQ 963462, dated November 24, 2000, in which golf was recognized as a “sporting activity,” but the subject golf shoe was classified under subheading 6403.99.60, HTSUSA, and not as “sports footwear.”
In its Application for Further Review, protestant states:
In reviewing other rulings pertaining to this issue such as NYH87213 dated February 22, 2002 and NYH89638 dated March 29, 2002 involving both “trainer” shoes and skateboarding shoes, as well as HQ 963465, all focus on whether there is discomfort while walking on flat and hard surfaces with the subject footwear. Each of these rulings found that the shoes were suitable for everyday walking and ordinary usage in that sense, therefore they were not “sports footwear”.
Protestant’s statement is incorrect. NY H87213, HQ 963465, and NY H89638 do not “focus” on whether there is discomfort while walking on flat and hard surfaces with the subject footwear. Rather, these rulings focus on whether the subject footwear has physical attributes (spikes, sprigs, cleats, stops, clips, bars or the like) that put it within the scope of Subheading Note 1 to Chapter 64, HTSUSA. While the physical characteristics and placement of the exemplar projections mentioned in Subheading Note 1(a) to Chapter 64, HTSUSA, may tend to render everyday walking impractical for some “sports footwear,” the ability to walk comfortably in footwear is not a factor in determining whether footwear is “sports footwear” under that Note.
In the case at hand, we find that the Red Chili rock climbing shoes do not fall within the scope of Subheading Note 1 to Chapter 64, HTSUSA, and are therefore not classifiable under 6403.19.7091, HTSUSA. The shoes do not possess any of the exemplar projections which would qualify them under Subheading Note 1(a) to Chapter 64, HTSUSA, and, contrary to protestant’s view, we do not find that the entire sole and rand are “like” a “cleat” or “stop.” Further, rock climbing shoes are not mentioned by name in Subheading Note 1(b) to Chapter 64, HTSUSA, eliminating them from consideration as those types of sports footwear.
Having determined that the Red Chili rock climbing shoes are not classifiable under provisions for “sports footwear,” classification of the shoes is based upon the composition of the outer soles and uppers. The composition of the uppers is determined in accordance with Note 4(a), Chapter 64, which provides that:
4. Subject to Note 3 to this Chapter:
(a) The material of the upper shall be taken to be the constituent material having the greatest external surface area, no account being taken of accessories or reinforcements such as ankle patches, edging, ornamentation, buckles, tabs, eyelet stays or similar attachments[.]
In addition, factors such as visibility, material plausibility, completeness and structure are also considered for ESAU determinations when footwear uppers consist of multiple materials. In the case at hand, the uppers of the Red Chili rock climbing shoes consist of multiple materials. Visible portions of both leather and rubber/plastics comprise the ESAU for all 6 styles of the shoes. Based on merchandise examination by the NCSD, we find that the rubber/plastics comprise the constituent material having the greatest ESAU for these styles.
Additionally, we find that the rubber/plastics upper materials of the Red Chili rock climbing shoes contribute support, rigidity and strength enabling the climbing shoes to perform their intended use. They could not perform their function as climbing shoes and would quickly fall apart without the rubber/plastics components. Rather than being considered accessories or reinforcements and disregarded in the ESAU determination, the rubber/plastics “overlays” are integral and essential parts of the uppers.
HOLDING:
The Red Chili rock climbing shoes identified as “Spirit, Torro, Habanero, Voodo, Dos Equis and Sausalito” are classified under subheading 6402.99.90, HTSUSA, which provides for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $12/pair.” The rate of duty is 20 percent ad valorem.
The protest should be DENIED. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP 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. No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division