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HQ 965718




September 5, 2002

CLA-2:RR:CR:TE 965718 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.14

Stephen S. Spraitzar, Esquire
Law Offices of George R. Tuttle
Three Embarcadero Center
Suite 1160
San Francisco, CA 94111

RE: Reconsideration of NY D86800; Molded Plastic Clogs; Not Waterproof

Dear Mr. Spraitzar:

This letter is in response to your request, dated May 21, 2002, filed on behalf of your client The Anywear Shoe Company, Inc., for reconsideration of New York Ruling letter (NY) D86800, issued to you on February 3, 1999. The request concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of molded plastic clogs, article #9901 and article #9902. A sample of article #9902 was submitted with the request for reconsideration.

After review of NY D86800, it has been determined that the classification of the plastic clogs in subheading 6402.99.14, HTSUSA, is correct. For the reasons that follow, this ruling affirms NY D86800.

FACTS:

In NY D86800, Customs classified the clogs under consideration in subheading 6402.99.14, HTSUSA, which provides, for: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area . . . is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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): Other: Sandals and similar footwear of plastics, produced in one piece by molding.” The general column one rate of duty is 3 percent ad valorem.

You contend that the clogs are classified in subheading 6401.99.8000, HTSUSA, the provision for “Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes: Other footwear: Other: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper).” The general column one duty rate is free.

The footwear at issue is a slip-on, below the ankle, injection-molded, polyurethane plastic clog. The clogs are not imported with insoles, but it is said that all clogs sold in the U.S. are sold with removable insoles that are made in the U.S. The submitted sample has two circular eyelet sized holes punched through the clog in the arch area of its upper near the sole. You state that article #9901 is similar in construction, the only difference being that it has one hole instead of two holes.

ISSUE

Whether molded plastic clogs with two circular eyelet sized holes punched in the arch area of the upper near the sole, are waterproof.

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.

In Headquarters Ruling Letter (HQ) 963224, dated March 22, 2002, Customs considered a nearly identical shoe to the instant clogs. The clog of HQ 963224 was of the same construction, except that it did not have any holes punched in the arch area near the sole. The issue under consideration in HQ 963224, was whether or not the clog was designed (primarily or otherwise) as a protection against water or other liquids. However, prior to resolving this issue, Customs made a determination as to whether the clog was waterproof. Customs found that:

The molded plastic clog at issue, i.e., the "Anywear Clog," is "waterproof" in construction, as defined in Additional U.S. Note 3 to chapter 64, HTSUSA, which states:

For the purposes of heading 6401 "waterproof footwear" means footwear specified in the heading, designed to protect against penetration by water or other liquids, whether or not such footwear is primarily designed for such purposes.

The clog also conforms to the language of heading 6401, HTSUSA, which provides for:

Waterproof footwear with outer soles and uppers of rubber or plastics, the uppers of which are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging or similar processes.

You submit that the ruling in NY D86800, that the instant clogs are not waterproof, is overturned by the ruling in HQ 963224. The status of NY D86800 hinges on whether the presence of the eyelet sized holes converts the waterproof clogs into footwear that is not waterproof.

Additional U.S. Note 3 to chapter 64 states that “waterproof footwear” is footwear that is “designed to protect against penetration by water or other liquids[.]” The two holes enter the inside of the clog approximately 1 ½ inches above the surface of the ground. The result is that if the clogs are worn in wet weather or wet terrain water will penetrate into the clog. Therefore, they do not meet the definition of “waterproof footwear.”

Moreover, the language of heading 6401 requires that “waterproof footwear” not be assembled by means of stitiching, riveting, nailing, screwing, plugging, or similar processes. All of the listed processes create holes in the footwear that allow water to penetrate inside the shoe. The requirement that “waterproof” footwear not be assembled by one of the above means, is pointless if footwear can have holes punched in their uppers and still be “waterproof.” “Waterproof” footwear must not provide a means, such as holes in the soles of the shoes, that allows water to penetrate into the interior of the shoe.

You argue that the holes in the upper of the shoe are no different than the open heel, in that both allow water to enter the shoe. You contend that if the clog is considered “waterproof” despite its open heel, then the presence of the small holes should not convert the clogs from “waterproof” to “not waterproof.” The problem with this argument is that the holes, which are significantly lower than the top of the heel of the clogs, allow water to penetrate into the shoe when the wearer is standing or walking in wet terrain or water. The holes allow water to penetrate into the shoe in a manner that was not possible in the clogs without the holes, thereby precluding classification as waterproof footwear.

HOLDING:

NY D86800, is affirmed. The footwear, article #9901 and article #9902, is classified in subheading 6402.99.14, HTSUSA, which provides for: “Other footwear with outer soles and uppers of rubber or plastics: Other footwear: Other: Having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except 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): Other: Sandals and similar footwear of plastics, produced in one piece by molding.” The general column one rate of duty is 3 percent ad valorem.

Sincerely,

Myles B. Harmon, Acting Director

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