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HQ 963465




November 20, 2000

CLA-2 RR:CR:TE 963465 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.90

John B. Pellegrini, Esquire
Ross & Hardies
65 East 55th Street
New York, New York 10022-3219

RE: Trail Running Shoes; Not Sports Footwear

Dear Mr. Pellegrini:

This letter is in response to your requests dated September 10, 1999, and January 3, 2000, on behalf of your client, The Timberland Company, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of three styles of athletic footwear designed to permit users to run and race on trails and “off-trail” on rocky and muddy surfaces, and to ascend and descend severe inclines. The shoes are made in China and samples were submitted with your request. We regret the delay in responding.

FACTS:

The shoes at issue are identified by stock numbers 17695, 19196, and 79117, and are described as models “Trailseeker,” “Seethru,” and “Ravine,” respectively. Each of the three styles has an upper that is composed of multiple materials, mostly of textile,
rubber and/or plastics. The rubber/plastics materials predominate. The outsoles of each style vary in configuration, but each is essentially composed of rubber and/or plastics. Located on each outsole, in order of placement from heel to toe, are rubber/plastic labels which state the functional terms: “BRAKE,” “SUPPORT,” “FLEX,” AND “PROPEL.”

Stock number 17695, model “Trailseeker,” is a women’s trail running shoe whose outsole has many features in the shapes of wedges, cones, loaves, etc. These features project outward in distances measuring between approximately 3/16 of an inch to ¼ of an inch from the surrounding area of the outsole.

Stock number 19196, model “Seethru,” is a man’s trail running shoe that is said to be designed for “less severe conditions.” Its outsole has numerous features in the shapes of crescents, small cones, small wedges, nubs, etc. The features project outward in distances measuring approximately 3/16 of an inch from the surrounding area of the outsole.

Stock number 79117, model “Ravine,” is said to be designed for “extreme and adventure running.” A strap fastens across the top of the tongue to provide extra support and security. The shoe’s outsole has abundant features in the shapes of wedges, small cones, waves, nubs, etc., several of which project outward in excess of ¼ of an inch from the surrounding area of the outsole.

It is contended that the molded rubber/plastic projections described above constitute cleats, spikes, bars, and sprigs, which provide traction permitting users to participate in the sporting activity of trail running and off-road running.

ISSUE:

Whether the trail running shoes are 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 6402 provides for other footwear with outer soles and uppers of rubber or plastics. 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.”

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, and HQ 955260, issued November 3, 1993. You essentially support a broad interpretation of the legal note. You maintain that the subject trail running shoes are “sports footwear” and that both requirements of subheading note 1(a) are satisfied because: 1) trail running is a sporting activity; and 2) the molded features which protrude from the outsole are “like” some of the listed exemplars – “spikes, sprigs, cleats, stops, clips, bars” - all of which provide traction on specific types of surfaces.

You have submitted literature in support of the position that trail running constitutes a “sporting activity,” including an article entitled “Rough and Ready” from the October 1998 edition of Runner’s World magazine. Customs has considered a range of activities such as rock climbing, bowling, hiking, riding, and hunting, to be sports or sporting activities, a consideration that is separate from the issue of whether footwear designed for those activities constitutes “sports footwear”. We note that a definition of the term “sporting activity” is not contained in the HTSUSA, and we are unaware of 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: “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 trail running to be a “sporting activity.”

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. It appears 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 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, noting that the terms “sprig,” “stop,” and “clip,” have no definitions that are related to footwear. 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 also provide 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.” 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 of the trail running shoes are “like” the enumerated exemplars because they increase traction and stability for running on trails and on shifting “off-road” surfaces.

Even in the absence of footwear-specific definitions for the terms “stop” and “clip,” the definitions you have provided note that a stop “checks the motion or thrust” of something, and that a clip is “that which clips or grasps” or “a projecting flangewhich clasps.” These functional definitions imply a need for the exemplar projections to be firm and resistant to pressure. The facts that “spike” is defined as a “sharp metal piece protruding” and that “cleat” is defined as a “spike on the sole” further suggest that, to be “like” the exemplars, a projection must be rigid and sharp or pointed. The additional fact that the phrase “or the like” immediately follows the exemplar terms, indicates that the exemplars are “like” one another in these physical characteristics and in the manner in which they provide traction for one engaged in a sporting activity.

You note that very little of the cushioning found in jogging shoes is built into the design of these trail running shoes. Nevertheless, we encountered no discomfort while walking on flat, hard surfaces wearing the sample trail running shoes. The flexibility, cushioning, spring, and relative comfort afforded by the subject rubber/plastic projections are not characteristic of the exemplar projections. Although we find that the trail running shoes are athletic footwear designed for a sporting activity, and that the features of their outsoles provide some measure of increased traction, the projections are not “like” the spikes, sprigs, cleats, stops, clips, or bars associated with “sports footwear.”

HOLDING:

The trail running shoes identified by stock numbers 17695, 19196, and 79117, and described as “Trailseeker,” “Seethru,” and “Ravine,” respectively, are classified in
subheading 6402.99.90, HTSUSA, the provision for “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Other: Other: Valued over $12/pair [12 dollars per pair].” The general column one duty rate is 20 percent ad valorem.

Sincerely,


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