CLA-2 RR:CR:TE 963224 GGD
Port Director
U.S. Customs Service
Post Office Box 55580
Portland, Oregon 97238
RE: Decision on Application for Further Review of Protest No. 2904-99-100043, filed
March 17, 1999, concerning the classification of molded plastic clogs.
Dear Madam:
This is a decision on a protest timely filed on March 17, 1999, against your decision in the classification and liquidation in 1998, of footwear that was entered in 1997 and 1998.
FACTS:
You classified the footwear in subheading 6401.99.3000, 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: 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,” with a general column one duty rate of 25 percent ad valorem.
The protestant claims that the goods should be 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
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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)," with a general column one duty rate of 2.4 percent ad valorem in 1997, and 1.2 percent ad valorem in 1998.
Alternatively, the protestant claims that the goods should be classified in subheading 6402.99.14, HTSUSA, the subheading under which the goods were entered, 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 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," with a general column one duty rate of 4.2 percent ad valorem in 1997, and 3.6 percent ad valorem in 1998.
As a second alternative, the protestant claims that the goods should be classified in subheading 6402.99.18, HTSUSA, the provision 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 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: Other," with a general column one duty rate of 6 percent ad valorem (in 1997 and 1998).
The footwear at issue, identified as the "ANYWEAR™ Clog," 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. Examination of a sample clog (size "large") reveals that it is constructed with a raised ridge at the heel, the exterior height of which measures approximately 2-1/8 inches above a flat surface (when the clog is not being worn or otherwise compressed). Without the insole in place, the heel ridge surrounds and covers a portion of the wearer's heel to a level that is at least 3/4 of an inch vertically above the rearmost, horizontal portion of the clog's interior footbed. The heel ridge distinguishes the subject clogs from those with a lower, or no, heel ridge. The heel of one using the subject clog, however, would always be at least partially visible, whether or not insoles are used. The sample clog's outer sole has sixteen rounded cone-shaped features (evenly spaced at the forward and rear portions of the sole), each
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approximately 3/4 of an inch in diameter and projecting outward approximately 3/16 of an inch from the surrounding area of the sole. A sampling of advertising literature submitted with the protest states:
COOL CLOGS. THE CAST OF 'ER' JUST GOT THEM IN white....Anywears' antimicrobial, washable clogs absorb odor-causing bacteria, and the extra cushioning in the nonskid soles makes the clogs as comfortable as slippers - the perfect footwear for running to photo shoots or through hospital corridors.
...They're the season's neatest flip-flop alternative....a great match with khakis or a tankini and offer a key bonus--the sole's bubble design massages your feet, no doubt helping Anywear devotees...walk tall.
These flexible clogs are specifically designed to reduce the amount of shock to feet, legs and joints when walking or standing for long periods as well as to inhibit foot odor. Preferred by medical personnel and chefs for their comfort, antimicrobial properties and pliability, they are also ideal for work in the garden and around the home.
...rubber garden clog was once reserved for garden club dowagers. This season, nongardening men and women are snatching up the Anywear clog....ideally worn with wrap skirts or the cropped pants called floodies....clogs are shock-resistant, antibacterial and machine-washable.
ISSUE:
Whether the molded plastic clog is classified in subheading 6401.99.3000, HTSUSA, as footwear designed as a protection against water, or in a provision for footwear that is not designed as a protection against water.
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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.
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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.
The essential issue to be resolved is whether or not the waterproof footwear at issue is designed (primarily or otherwise) as a protection against water or other liquids. Subheading 6401.99, HTSUSA, provides for other 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, Customs published Treasury Decision (T.D.) 93-88, which contains certain footwear definitions used by Customs import specialists to classify footwear. The footwear definitions were provided merely as guidelines and, although consulted here, are not to be construed as Customs 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:
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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, Customs 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 clog 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 "Anywear Clog" is "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 plastic clog, the "Anywear Clog" is not the same shape as traditional Dutch wooden shoes. 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 as a protection against water. For rulings concerning similar issues, see Headquarters Ruling Letter (HQ) 960756, dated June 29, 1999, HQ 959494, dated September 27, 1996, and HQ 952304, dated January 27, 1993.
HOLDING:
The footwear identified as the "ANYWEAR™ 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 one duty rate is 2.4 percent ad valorem in 1997, and 1.2 percent ad valorem in 1998.
The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the
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protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.
No later than 60 days from the date of this letter, 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 by other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division