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HQ 965073

July 12, 2002

CLA-2 RR:CR:TR:TE 965073 JFS


TARIFF NO.: 6403.91.60

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731

RE: HQ 964980; Football Shoe, Artificial Turf; Not Sports Footwear.

Dear Sir/Madam:

This is a decision on an application for further review (AFR) of a protest timely filed on May 16, 2001, by Ross & Hardies, on behalf of adidas, America, Inc. The protest concerns the classification and liquidation of an entry of athletic footwear entered on August 13, 1999.


You classified the footwear in subheading 6403.91.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in pertinent part, for “Footwear with outer soles of rubber...and uppers of leather: Other footwear: Covering the ankle: Other . . .” The general column one rate of duty is 8.5% ad valorem.

The protestant claims that the footwear 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.

The classification of the instant shoe was first addressed in HQ 963526, dated November 21, 2000. In that ruling, the shoe was described as follows:

The shoe identified by article number 664784, and described as model “HYBRID MID,” is a man’s lace up, over-the-ankle football shoe, with an upper that is composed of leather, textile materials, and rubber/plastics. The leather materials predominate. 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 wet artificial turf.

Normally Customs will not grant an AFR when the classification of the same article has already been addressed in a Headquarters ruling. However, in this case the protestant has raised new legal arguments that merit consideration. Accordingly, the AFR is granted.


Whether the football shoe designed for play on artificial turf is classified as "sports footwear."


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. The protestant supports a broad interpretation of the legal note. The protestant contends 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.

The protestant disagrees with the rigidity of these interpretations and provides 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." The protestant also offers 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." The protestant submits 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 protestant questions our rationale in HQ 963526, 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."

The protestant contends 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.

The protestant cites 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.

The protestant also contends 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.

Finally, the protestant argues that Customs improperly applied the doctrine of ejusdem generis in HQ 963526 when Customs stated: 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.

The protestant cites Sandoz Chemical Works, Inc. v. United States, 50 CCPA 31, 35 (1963) and Neco Electrical Products v. United States, 14 CIT 181, 190 (1990) for the proposition that the principle of ejusdem generis cannot be used to restrict the language of a tariff provision. Customs position that the terms are to be narrowly applied to those protuberances that have similar features, i.e., are sharp and pointed, is derived from the fact that the Subheading Note 1. to Chapter 64 states that the “expression ‘sports footwear’ applies only to” footwear having spikes, sprigs, cleats, etc. The inclusion of the limiting language prior to the descriptive terms is a clear demonstration of congressional intent that the terms be narrowly construed. Ejusdem generis, “[a]s with all principles or canons of statutory interpretation, . . . is ‘used only as an instrumentality for determining the legislative intent in cases where it is in doubt.’” Neco 14 CIT at 26, citing, John V. Carr & Son, Inc. v. United States, 77 Cust. Ct. 103, 108 (1976). Given Congress’ express intent that the terms be narrowly construed, it would be improper for Customs to subvert Congress’ intent by application of a principle of statutory construction, i.e., ejusdem generis.


The protest should be DENIED. The football shoe, article number 664784, model “HYBRID MID,” is classified in subheading 6403.91.60, HTSUSA, which provides, in pertinent part, for” Footwear with outer soles of rubber...and uppers of leather: Other footwear: Covering the ankle: Other . . .” The general column one rate of duty is 8.5% ad valorem.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels


Myles B. Harmon, Acting Director
Commercial Rulings Division

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