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HQ 966835




March 18, 2004

CLA-2 RR:CR:TE 966835 KSH

TARIFF NO.: 6401.99.8000

Ms. Debi French
Marisol International, LLC
4300 Highline Boulevard, Suite 150
Oklahoma City, OK 73108

RE: Revocation of Port Decision Letter (PD) H87387, dated February 8, 2002; Classification of certain waterproof clogs

Dear Ms. French:

This is in response to your letter of December 9, 2003, in which you request reconsideration, on behalf of your client Midwest Quality Glove of Chillicothe, MO, of Port Decision Letter (PD) H87387, issued to your client on February 8, 2002, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of slip-on, clog-type shoes with a molded 100% rubber upper and outer sole. The clogs are identified by style number 6070. The clogs were classified in subheading 6401.99.3000, 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: Other footwear: Other: 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: Designed for use without closures.” You submit that the footwear is of the same design and nature as footwear described in Headquarters Ruling Letter (HQ) 963224, dated March 22, 2002, in which we determined that the footwear was classified in subheading 6401.99.8000, 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: 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).” We have reviewed PD H87387 and found it to be in error. Therefore, this ruling revokes PD H87387.

FACTS:

Two samples were submitted in conjunction with your request for reconsideration. The samples are identified as style numbers 6070 and TG6073, the latter of which was the subject of, and correctly classified in, New York Ruling Letter (NY) K80201, issued to your client on November 12, 2003. The submitted samples are substantially similar, slip-on, clog-type shoes each with a molded 100% rubber upper and outer sole. The clogs have a textile lining and a removable footbed insole. The wearer’s heel would be partially exposed when worn.

ISSUE:

Whether the clog is classifiable as protective footwear under subheading 6401.99.3000, HTSUSA, or as waterproof footwear under subheading 6401.99.8000, HTSUSA.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

At issue, essentially, is whether the instant clogs are designed to protect against mere penetration by liquids, or 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.

"Waterproof footwear" is 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 is clearly waterproof footwear. Subheading 6401.99, HTSUSA, provides for other waterproof footwear, other than that covering the ankle but not covering the knee, that is 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.

On November 17, 1993, in the Customs Bulletin, Volume 27, Number 46, CBP published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions used by CBP import specialists to classify footwear. The footwear definitions were provided merely as guidelines and, although consulted here, are not to be construed as CBP rulings. With regard to "protection," T.D. 93-88 states, in pertinent part:

Footwear is designed to be a "protection" against water, oil or cold or inclement weather only if it is substantially more of a "protection" against those items than the usual shoes of that type. For example, a leather oxford will clearly keep your feet warmer and drier than going barefoot, but they are not a "protection" in this sense. On the other hand the snow-jogger is the protective version of the non-protective jogging shoe.

Generally, open toe/open heel footwear is not 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. T.D. 93-88 states:

In "open" toe shoes, all or part of the front of the wearer's toes can be seen. In open heeled shoes, all or part of the back of the wearer's heel can be seen.

For footwear classification purposes, CBP interprets the "heel" to be the rearmost boney part of the human foot, the top of which is located just below the Achilles tendon.

As previously noted, examination of the sample clogs revealed a raised ridge at the heel. Although the heel ridge distinguishes the subject clog from those with a lower, or no, heel ridge, the heel of one using the subject clog would always be at least partially visible. In this regard the clogs are open-heeled footwear. T.D. 93-88 provides examples of 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. Under the heading "Protection," it is stated in pertinent part that, footwear that is a "protection" against water includes:

4. Molded rubber clogs, which are the same shape as traditional Dutch wooden shoes. They are used in gardening on wet terrain.

Although it is a molded rubber clog, the clog is not in the same shape as traditional Dutch wooden shoes which have a closed heel. In light of the above analysis, and of the fact that the clogs constitute open-heeled footwear, we find that the clogs are not 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. See HQ 963224, dated March 22, 2003 (and compare HQ 965718, dated September 5, 2002).

HOLDING:

PD H87387, dated February 8, 2002, is hereby revoked.

The waterproof clog is 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 1 Rate of Duty is free.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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