CLA-2 RR:CR:TE 963451 GGD
John B. Pellegrini, Esquire
Ross & Hardies
65 East 55th Street
New York, New York 10022-3219
RE: Reconsideration of New York Ruling Letter (NY) E86657; “Grinding” Shoe; Not
Sports Footwear
Dear Mr. Pellegrini:
This letter is in response to your request of September 30, 1999, on behalf of your client, Artemis Innovations, Inc., for reconsideration of New York Ruling Letter (NY) E86657, issued September 15, 1999, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a man’s “grinding” shoe, footwear that is designed to permit wearers to slide or “grind” along handrails, curbs, ledges, and other structures. The shoes are made in Korea and a sample was submitted with your request. We regret the delay in responding.
FACTS:
In NY E86657, Customs classified the shoe, identified by style number 7990002, in American size 8-1/2 or larger, in subheading 6403.99.60, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: Other: Other: Other: For men, youths and boys.” In American
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size 8 or smaller, style no. 7990002 was classified in subheading 6403.99.90, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: Other: Other: Other: For other persons: Valued over $2.50/pair [two dollars fifty cents per pair].”
The “grinding” shoe at issue in NY E86657, has an outer sole composed of fairly rigid rubber and/or plastics and an upper that is composed essentially of leather. Under the arch of the foot, the outer sole is fitted with a concave plastic plate frame which is fastened to the sole by means of three screws. “Grinding” is said to be an outgrowth of in-line skating. The plate frame is designed to allow the shoe’s wearer to slide or “grind” along handrails, curbs, ledges, and other structures, in locations where in-line skating and/or skateboarding may not be practical or allowed. The plate frame is available in three separate versions, each of which affects traction differently for different sliding purposes.
ISSUE:
Whether the “grinding” shoe is classified as “sports footwear” in 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;“ or as athletic footwear in subheadings 6403.99.60 and 6403.99.90, HTSUSA, each of which provides, in part, for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather…Tennis shoes, basketball shoes, gym shoes training shoes and the like.”
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.
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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:
(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.” [Emphasis added.]
As was stated in NY E86657, it has 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, and HQ 955260, issued November 3, 1993. You essentially contend that the note should not be interpreted narrowly, asserting that the men’s “grinding” shoe satisfies both requirements of subheading note 1(a), and that the shoe is properly classified as sports footwear because: 1) “grinding” is a sporting activity; and 2) the plastic plate frame which attaches to the sole is “like” the listed exemplars spikes, sprigs, cleats, stops, clips, and bars, all of which affect traction.
You have submitted videotapes of persons engaged in the activity of “grinding.” The films also demonstrate a considerable amount of jumping and running between the structures on which the “grinding” occurs. You note that Customs has considered a range of activities such as rock climbing, bowling, hiking, riding, and hunting, to be sports or sporting activities (a consideration separate from the issue of whether footwear designed for those activities constitutes “sports footwear”). With respect to whether “grinding” may be considered a “sporting activity” for purposes of subheading note 1(a) to chapter 64, we first note that a definition of the term “sporting activity” is not contained in the HTSUSA. Although we are also unable to point to any lexicographic source which defines “sporting activity,” the term appears, at least, to be closely related to sport.
In pertinent part, Webster’s New World Dictionary of the American Language, College Edition (1968), defines the adjective “sporting” as: “1. Of or having to do with sports, or athletic games, etc.” This same source defines “sport” in pertinent part as:
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“1. any activity or experience that gives enjoyment or recreation; pastime; diversion. 2. Such an activity requiring more or less vigorous bodily exertion and carried on according to some traditional form or set of rules, whether outdoors, as football, hunting, golf, racing, etc., or indoors, as basketball, bowling, squash, etc. 3. fun; play: as, it was great sport to play in the surf. In light of the evidence submitted and the above definitions, we consider “grinding” to be a “sporting activity.” (But see HQ 962745, issued October 25, 1999, in which this office found that the activity of dance does not constitute a sport.)
Mindful that the phrase in subheading note 1 to chapter 64, HTSUSA, that “…”sports footwear” applies only to:….” appears to convey an intent to reasonably limit the array of footwear classified as “sports footwear,” Customs does not broadly interpret the exemplar terms “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. It appears that the exemplars, generally, are projections which possess relatively sharp points or edges that are designed to dig into turf or ice. You disagree with these interpretations, particularly as to any requirement that “attachments” to “sports footwear” be designed to dig into the ground. You state, for example, that the terms “sprig,” “stop,” and “bar,” have no definitions that are related to footwear, and you offer the following definitions of those three terms taken from the Compact Edition of the Oxford English Dictionary (Oxford 1971). “Sprig: A small projecting part or a point.” “Stop: A piece of mechanism (e.g., a pin, bolt, shoulder, a strip or block of wood which checks the motion or thrust thereof.” “Clip: That which clips or grasps; … in Farriery a projecting flange on the upper surface of the toe of a horseshoe which clasps the front part of the hoof….”
You contend that the common thread in the exemplars of subheading note 1(a) to chapter 64, is that each is an addition (to an otherwise complete outsole) that is designed to affect traction for the wearer in one way or another on the surface on which a sport is played. You conclude that, since “grinding” is more effectively engaged in when the plate frame affects and decreases traction, the plate frame is “like” the spikes and cleats of baseball and football shoes, whose attachments affect and increase traction, since all of these attachments affect traction and allow more effective participation on the various surfaces – rails, curbs, turf, etc. While we agree that the
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plate frame and the listed exemplars all affect traction, we find that the similarity ends there. We do not agree that the plate frame is like “spikes, sprigs, cleats, stops, and bars” because it does not provide increased traction.
In addition to the definitions above, you have also provided the following footwear-specific definitions of the terms “spike,” “cleat,” and “bar” 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.” “Bar: A piece attached to the sole, and used for shoe modifications or as an orthotic to alter foot tread or gait, or as an adjustment to accommodate some foot problem.” Each of the three footwear-related features is a projecting attachment. Two of the three features (spike and cleat) are clearly designed to increase traction. Although the relationship of a “bar” to sports footwear is not revealed by the above definition, it is unlikely that a “bar” used as an orthotic to alter foot tread or gait, or to accommodate a foot problem, would be designed to decrease traction.
Even in the absence of footwear-specific definitions for the terms “sprig,” “stop,” and “clip,” the definitions you have provided note that a sprig is a “projecting part or a point;” that a stop “checks the motion or thrust” of something, and that a clip is “that which clips or grasps” or “a projecting flange…which clasps….” None of the six terms appears related in any meaningful way to decreased traction or to the plate frame at issue. The additional fact that the phrase “or the like” immediately follows the terms “spikes, sprigs, cleats, stops, clips, bars…” strongly indicates that the exemplars are “like” one another and share a common use, i.e., to increase traction for a wearer engaged in a sporting activity. We find that, although the “grinding” shoe is athletic footwear that is designed for a sporting activity, the article is not classified as “sports footwear.”
HOLDING:
The “grinding” shoe identified by style number 7990002, if in American size 8-1/2 or larger, is classified in subheading 6403.99.60, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: Other: Other: Other: For men, youths and boys.” The general column one duty rate is 8.5 percent ad valorem.
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If in American size 8 or smaller, shoe style no. 7990002 is classified in subheading 6403.99.90, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: Other: Other: Other: For other persons: Valued over $2.50/pair [two dollars fifty cents per pair].” The general column one duty rate is 10 percent ad valorem.
NY E86657, issued September 15, 1999, is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division