Apparel 
Requirements
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Recently
Issued Customs Ruling On Molded Clogs |
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June
28 , 2002 On March 2, 2002, U.S. Customs Headquarters issued a decision (HQ 963224) on an application for further review involving certain molded plastic clogs, holding that the clogs are classifiable in subheading 6401.99.8000, providing for waterproof footwear . with uppers over 90 percent of the external surface area which have the 2002 duty rate of free. This ruling clarified the definition of an "open heeled" shoe, and will have definite implications for athletic footwear where the heel is not completely covered (open heeled).
The merchandise involved in HQ 963224 was a slip-on, below the ankle, injection-molded, polyurethane plastic clog. The clogs were not imported with insoles; the insoles were added after importation and prior to sale. The clog was constructed with a raised ridge at the heel, which is 2-1/2 inches above a flat surface. Without the insole, the heel ridge surrounds and covers a portion of the wearer's heel to a level that is at least ¾ of an inch vertically above the rear-most, horizontal portion of the clog's interior footbed. Customs had liquidated the clogs under HTS subheading 6401.99.3000, as waterproof 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 at the duty rate of 25 percent ad valorem. Customs identified the issue as whether the molded plastic clog is footwear designed as protection against water, or is classifiable in a provision for footwear that is not designed as protection against water. Customs first concluded that the AnywearT clog is "waterproof" in construction as defined in Additional U.S. Note 3 to Chapter 64 HTSUSA, and that the clog conforms to the type of footwear covered in Heading 6401. In reviewing the principal issue, Customs cited T.D. 93-88, which contains certain footwear definitions. One of the definitions, "protection," 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 dryer 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. Customs indicated that, generally, open toe/open heel footwear is not designed as a protection against water or liquids, citing from the same T.D. that an "open heeled shoe is a shoe where all or part of the back of the wearer's heel can be seen". In the view of Customs, the heel of anyone using the clog in issue would always be at least partially visible. Therefore, the "AnywearT clog" is "open heeled" footwear. Customs also stated that the AnywearT clog is not the same shape as traditional Dutch wooden shoes, as indicated in paragraph 4 under the definition of "protection". Therefore, the AnywearT clogs are not designed as a protection against water.
The clog ruling may have significant ramifications on certain types of athletic footwear. Specifically, certain types of athletic footwear which have uppers of plastic or textile, and which have an open heel, may have their duty rates substantially increased. For example, footwear with open heels, currently classified under HTS 6402.99.90 at 20% (per the definition in HQ 963224), would probably be reclassified to HTS 6402.99.30 as footwear with open heels at the duty rate of 37.5%. Athletic footwear currently classifiable under HTS 6404.11.90 as footwear with uppers of textiles and valued over $12/pair at 20%, if having an open heel, would be reclassified to HTS 6404.19.35 as footwear with open heels with uppers of textile at the duty rate of 37.5% ad valorem. Footwear with uppers of leather would not be affected by the clog ruling. In summary, designers of footwear need to take into consideration the holding of HQ 963224, to ensure that their footwear will not be assessed at a higher rate of duty. If you have any questions on the issues raised in this newsletter, please contact Stephen Spraitzar at (415) 288-0427 or at sss@tuttlelaw.com.
Copyright © 2002 by Tuttle Law Offices. All rights reserved. Information has been obtained from sources believed to be reliable. However, because of the possibility of human or mechanical error by our offices or by others, we do not guarantee the accuracy, adequacy, or completeness of any information and are not responsible for any errors, omissions, or for the results obtained from the use of such information.
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