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