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HQ 963430




July 10, 2001

CLA-2 RR:CR:TE 963430 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.20

Port Director
U.S. Customs Service
Los Angeles-Long Beach Seaport
300 South Ferry Street
Terminal Island, California 90731

RE: Internal Advice Request No. 19/99; Cycling Shoe Covers; Protective Footwear Designed to be Worn Over Other Footwear as Protection; Not Protective Sports Equipment

Dear Sir:

This letter is in response to Internal Advice Request No. 19/99, initiated by a letter dated March 10, 1999, submitted by Sandler, Travis & Rosenberg, P.A., 5200 Blue Lagoon Drive, Miami, Florida, 33126-2022, on behalf of Dash America, Inc. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a cover for a bicycling shoe. The cover is made in Thailand.

FACTS:

The sample merchandise, identified as "Typhoon Booties,” consists of specially designed footwear for road or mountain bicycling. Each booty is an over-the-ankle shoe cover which slides over a cycling shoe and is intended to protect the shoe and the rider's foot from cold and/or wet conditions. The upper is composed of a neoprene textile material and it is lined with a textile fleece material. There are two straps (each with hook and loop fabric fasteners) to tighten the booty - one near the ankle area and one over the top of the foot. A continuous band of rubber encircles the booty where the
upper and sole meet. The constituent material of the outer sole is rubber. The sole consists of an area of rubber running from under the toes to the ball of the foot, and a strip spanning the booty's width at the arch, measuring approximately four inches in length. The area under the ball of the foot, and at the heel, is open (i.e., without material). The opening under the ball of the foot is intended to accommodate connection of the cleat of the cycling shoe to the bicycle pedal. Disregarding the heel area, most of the area of the sole consists of rubber.

ISSUE:

Whether the "typhoon booties" are classified under heading 9506, HTSUSA, as articles/equipment for sports; or under heading 6404, HTSUSA, as 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

The internal advice applicant, through counsel, essentially contends that, since the "typhoon booties" are designed to be worn over cycling shoes, yet are missing more than half of the outer sole (including the heel area), the booties cannot be classified as footwear. Counsel maintains that the booties function in a manner similar to shin-guards and other protective sportswear, and are therefore excluded from chapter 64 by note 1(f) to that chapter, and classified under heading 9506, HTSUSA.

Heading 9506, HTSUSA, covers "Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof. Note 1(g) to chapter 95, HTSUSA, states that the chapter does not cover:

Sports footwear (other than skating boots with ice or roller skates attached) of Chapter 64, or sports headgear of Chapter 65.

The EN to heading 9506 state that examples of the protective equipment (for sports or games) covered by the heading include "fencing masks and breast plates, elbow and knee pads, cricket pads, and shin-guards."

Chapter 64, HTSUSA, covers footwear, gaiters and the like; and parts of such articles. Heading 6404, HTSUSA, covers "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials." As referenced above, note 1(f) to chapter 64, HTSUSA, states that the chapter does not cover:

Toy footwear or skating boots with ice or roller skates attached; shin-guards or similar protective sportswear (chapter 95).

In pertinent part, note 4(b) to chapter 64, HTSUSA, states:

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.

Subheading note 1 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;

(b) Skating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and cycling shoes.

In pertinent part, General Explanatory Note (A)(9) to chapter 64 (page 956), states that chapter 64 includes:

Overshoes worn over other footwear; in some cases, they are heel-less.

Although the "typhoon booties" are designed for use in the sport of cycling, they do not have, nor do they have provision for the attachment of features which protrude from the soles of certain types of sports footwear. The booties are worn over cycling shoes, but they do not constitute cycling shoes or other "sports footwear" as that
expression is defined in subheading note 1 to chapter 64, HTSUSA. While we agree that the booties have protective characteristics, they are articles which protect against cold and/or water. As such, they are not functionally similar to the examples of protective equipment classifiable under heading 9506, which are designed to ward off kicks, blows, stabs of a foil, etc. The "typhoon booties" are overshoes designed to accommodate cycling shoes, whose cleats must connect with the bicycle's pedal's. In this case, the connection is made through an opening in the sole of the protective footwear. Like some overshoes, the "typhoon booties" are heel-less. Despite having two open areas, we find that the booty has an outer sole. Pursuant to note 4(b) to chapter 64, the sole is composed of rubber, the constituent material having the greatest surface area in contact with the ground. The "typhoon booties" are classified in subheading 6404.19.20, HTSUSA. For similar rulings, see Headquarters Ruling Letter (HQ) 089583, dated October 2, 1991; HQ 950199, dated November 26, 1991; New York Ruling Letter (NY) 803758, dated November 21, 1994; NY D82352, dated October 9, 1998; and NY 877956, dated October 5, 1992.

HOLDING:

The footwear identified as "Typhoon Booties" is classified in subheading 6404.19.20, HTSUSA, the provision for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: 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." The general column one duty rate is 37.5 percent ad valorem.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the 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 means of public distribution.

Sincerely,


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