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HQ 950199


November 26, 1991

CLA-2 CO:R:C:M 950199 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6405.20.90

Ms. Sharon Pate
Charles M. Schayer & Co.
3839 Newport Street
Denver, Colorado 80207

RE: Bicycle Shoe Cover; GRI 1; plastic; textile material; Note 3, Chapter 64; General EN (C),(D),(E) and (F) to Chapter 64; Note 4, Chapter 64; EN 64.05

Dear Ms. Pate:

This is in response to your letter dated July 15, 1991, to Customs in New York, on behalf of Dashamerica, Inc., regarding the tariff classification of bicycle shoe covers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter and sample were forwarded to this office for a reply.

FACTS:

The merchandise under consideration is a bicycle shoe cover. The sample submitted is an over the ankle boot which you state is made of 100% polyester. Bicycle shoe covers are used to keep the feet of cyclists warm during cold weather. The upper portion of the sample is made from a knit polyester fabric that has been laminated on its inner surface with a brushed knit man-made fiber terry fabric. The toe portion is overlaid with a knit fabric that has been covered with nontransparent plastic on its exterior surface. The sample has a woven nylon overlay, with a heavy plastic covering on its underside, across the vamp. There is a zipper at the back of the upper running from the heel to the topline.

Additionally, we determined that the outer sole stitched to the upper is made of a nonwoven fabric that is impregnated with plastic and then covered on its outside surface with nontransparent plastic which obscures the underlying nonwoven fabric. The outer sole has a triangular hole cut into it which is approximately 2 1/4 inches at the base and 3 1/4 inches long. The hole runs from the midsole to the toe area. The purpose of this hole is to allow a cyclist wearing cycling shoes to attach his/her cleats to the bicycle peddles.

ISSUE:

What is the proper tariff classification of the bicycle shoe cover under the HTSUSA?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of headings and any relative section or chapter notes...."

Heading 6405, HTSUSA, provides for "Other footwear...." Note 3, Chapter 64, HTSUSA, states "[f]or the purposes of this chapter, the expression 'rubber or plastics' includes any textile material visibly coated (or covered) externally with one or both of those materials." General Explanatory Note (E) of the Harmonized Commodity and Description Coding System (HCDCS) to Chapter 64 reiterates that "rubber or plastics" includes any textile material visibly coated or covered externally with one or both of those materials," and continues by stating that this "means that the coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour." HCDCS, Vol. 3, p. 875. The Explanatory Notes, although not dispositive, are to be looked to for proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Note 4, Chapter 64, HTSUSA, states that "[s]ubject 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;

(b) The constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails, protectors or similar attachments."

See also, General Explanatory Notes (C) and (D) to Chapter 64. HCDCS, Vol. 3, p. 874, 875. Additionally, General Explanatory Note (F) to Chapter 64 states that "[s]ubject to the provisions of (E) above, for the purposes of this Chapter the expression 'textile materials' covers the fibres, yarns, fabrics, felt, nonwovens, twine, cordage, ropes, cables, etc., of Chapters 50 to 60." HCDCS, Vol. 3, p. 875.

Explanatory Note (EN) 64.05 states that this "heading includes in particular:

(1) Footwear, with outer soles of rubber or plastics, and the uppers made of material other than rubber, plastics, leather or textile material;

(2) Footwear with outer soles of leather or of composition leather, and the uppers made of material other than leather or textile material;

(3) Footwear with outer soles of wood, cork, twine or rope, paperboard, furskin, textile fabric, felt, nonwovens, linoleum, raffia, straw, loofah, etc. The uppers of such footwear may be of any material."

HCDCS, Vol. 3, p. 879.

We are of the opinion that the bicycle shoe cover under consideration is properly classified under heading 6405, HTSUSA, as "Other footwear...." A bicycle shoe cover which has a complete outer sole with a hole which allows the cleats of the cycling shoes to attach to the peddle is classified as a whole shoe, rather than a gaiter. The outer sole of the bicycle shoe cover is more than a strap which is meant to keep the upper from moving around like a conventional gaiter. Unlike a gaiter, the outer sole on the instant shoe is meant to cover and protect the bottom of the shoe except for that portion which will be attached to the bicycle peddle.

The outer sole of the bicycle shoe cover is made of nonwoven fabric impregnated with plastic which is regarded as a textile material. If the sole portion of the article were imported as material, it would be classifiable under the provision for nonwovens, whether or not impregnated, coated, covered, or laminated, in subheading 5603.00.90, HTSUSA. It and the rest of the materials forming the article (except the plastic zipper) are textile materials for tariff classification purposes. Accordingly, the bicycle shoe cover satisfies the description of footwear in heading 6405, HTSUSA, and, therefore, is classified under subheading 6405.20.90, HTSUSA, as "Other footwear...With uppers of textile materials...Other."

HOLDING:

The bicycle shoe cover is properly classified under subheading 6405.20.90, HTSUSA, which provides for "Other footwear...With uppers of textile materials...Other." This tariff provision is dutiable at the rate of 12.5% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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