CLA-2 OT:RR:CTF:TCM H097675 TNA
Mr. Michael Gamble
Expediters International of Washington, Inc.
21318 64th Ave. South
Kent, WA 98032
Re: Request for Reconsideration of NY N087755; Classification of the “Rivershed” Boot.
Dear Mr. Gamble:
This is in response to your request, dated February 9, 2010, on behalf of Simms Fishing Products, LLC, for reconsideration of New York Ruling Letter (“NY”) N087755, dated January 8, 2010, as it pertains to the classification of the “Rivershed Boot” under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is called the “Rivershed Boot.” It is a light weight men’s boot designed for fishers who want to hike to high country fishing destinations. It contains an outer sole that is made entirely of rubber and has molded receptacles to allow for the attachment of circular metal projections. The receptacles are spaced one inch apart and cover the entire surface of the outer sole.
The “Rivershed Boot” also contains an upper consisting of 45.4% rubber-coated nylon, 44.12% plastics and 10.48% rubber. The nylon is visibly coated in rubber; as a result, the external surface are of the upper is 55.88% rubber and 22.12% plastics. A sample of the subject merchandise, which includes samples of the metal projections that are attached to the soles, was received and examined by this office.
NY N087755 classified the subject merchandise in subheading 6402.91.90, HTSUS, as other footwear that covers the ankle and is valued at over $12/pair.
ISSUE:
Whether the subject “Rivershed Boot” should be classified in subheading 6402.19, HTSUS, as other sports footwear; or under subheading 6402.91, HTSUS, as other footwear that covers the ankle?
LAW AND ANALYSIS:
Classification under the HTSUS 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 GRIs may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
The HTSUS subheadings under consideration are the following:
6402 Other footwear with outer soles and uppers of rubber or plastics:
Sports footwear:
6402.19 Other:
Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear designed to be worn over, or in lieu of, other footwear as a protection against water, oil, grease or chemicals or cold or inclement weather):
6402.19.15 Other
Other
6402.19.90 Valued over $12/pair
Other footwear:
6402.91 Covering the ankle:
Other:
Other:
Other:
6402.91.90 Valued over $12/pair
Subheading Note 1 to Chapter 64, HTSUS, reads, in pertinent part:
1. For the purposes of subheadings 6402.12, 6402.19, 6403.12, 6403.19 and 6404.11, the expression “sports footwear” applies only to:
(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, snowboard boots, wrestling boots, boxing boots and cycling shoes.
In the present case, there is no dispute at the heading level. The subject merchandise consists of boots with rubber outer soles and an upper whose visible surface area is 55.88% rubber and 44.12% plastic. As such, it is classified in heading 6402, HTSUS, as other footwear with outer soles and uppers of rubber.
You argue the Rivershed Boot’s ability to have studs attached to the sole brings the boot within the definition of “sports footwear.” We disagree. It has long been CBP’s position that Subheading Note 1 to Chapter 64, HTSUS, 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.”
The terms “spikes, sprigs, cleats, stops, clips [and] bars” are not defined in the HTSUS or its legislative history. When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, we look to the term’s common or commercial meaning. See Lonza, Inc. v. United States, 46 F.3d 1098, 1106-07 (Fed. Cir. 1995); Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The Complete Footwear Dictionary, 172 (2nd ed. 2000), defines a spike as “a short, sharp metal piece protruding from the bottom of the shoe sole, used for traction on track shoes. Also used on some shoes or boots for mountain climbing or walking on slippery surfaces.” It defines cleats as “a knob or spike on the sole for increased traction; arranged in groups or patterns.” Id. at 34.
CBP’s 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, track and field events, or field sports such as baseball, soccer, American football, rugby, etc. In addition, crampons and similar attachments for rock or 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, which are suitable for everyday walking, have not been considered “sports footwear” because these projections are unlike spikes, sprigs, cleats, stops, clips, bars and the like. See, e.g., NY N030921, dated July 10, 2008; NY H87213, dated February 22, 2002; and HQ 963526, dated November 21, 2000. 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 also be spaced fairly widely apart. These physical characteristics and necessary placement of the exemplar projections tend to render everyday walking in sports footwear impractical. See, e.g., HQ 966915, dated April 21, 2004; HQ 964980, dated July 12, 2002; HQ 965073, dated July 12, 2002; HQ 963465, dated November 20, 2000.
Furthermore, 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. By not including a term that describes the protrusions on the instant footwear, Congress demonstrated intent to exclude such footwear from the provision for sports footwear. See, e.g., HQ 966915; HQ 964980; HQ 965073; HQ 963465.
In the present case, the subject boots are not imported with their projections molded or attached to their soles. While the projections could be attached to the boot following importation, they would be spaced closely together, much more closely than the wide berth required for traction on ground, turf or ice. Furthermore, the projections themselves are blunt metal studs that do not possess the sharpness of spikes and the other exemplars of Subheading Legal Note 1 to Chapter 64, HTSUS. Everyday walking in the Rivershed Boots would not be inhibited, even with the projections attached. The subject merchandise is therefore not ejusdem generis with these exemplars. As a result, it cannot be classified as “sports footwear.” This logic is consistent with prior CBP rulings. See, e.g., HQ 964980, dated July 12, 2002; NY H87213, dated February 22, 2002; HQ 966915, dated April 21, 2004; HQ 964980, dated July 12, 2002. The Rivershed Boot is therefore classified in subheading 6402.91.90, HTSUS, as “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued at more than $12/pair.”
You argue that the metal projections are akin to spikes or cleats because they enhance traction while fishing in streams that have slippery bottoms. In response, we note that these projections, rather than possessing the sharp edges that characterize spikes and cleats, have flat tops. Furthermore, once attached to the bottom of the “Rivershed” Boot, they do not protrude past the boots’ rubber bottoms in the same manner as spikes on track shoes or cleats on soccer shoes. As a result, we find that these projections are not equivalent to the exemplars listed in Subheading Legal Note 1 to Chapter 64, HTSUS.
HOLDING:
Under the authority of GRI 1, the “Rivershed Boot” is provided for in heading 6402, HTSUS. More specifically, it is classified under subheading 6402.91.90, HTSUS, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Covering the ankle: Other: Other: Other: Valued over $12/pair.” The general, column one duty rate is 20%.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N087755, dated January 8, 2010, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division