The tariff classification of footwear from China

N236611 January 4, 2013 CLA-2-64:OT:RR:NC:N4:447  CATEGORY: Classification TARIFF NO.: 6401.99.3000 Ms. Isabel Campbell Trans-Union Customs Service, Inc. 11941 S. Prairie Avenue Hawthorne, CA 90250 RE:  The tariff classification of footwear from ChinaDear Ms. Campbell:In your letter dated December 7, 2012 you requested a tariff classification ruling on behalf of your client, Strategic Distribution, L.P.The submitted half-pair sample identified as style name “Exact,” is a closed toe/closed heel slip-on waterproof “garden clog” with a one-piece injection molded rubber or plastics outer sole and upper that does not cover the ankle. The clog is not lined and has a removable insole. You state in your letter that the clog has an exposed heel and as such, should be classified under subheading 6401.99.8000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for in pertinent part; footwear that 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. We disagree with this suggested classification.  On October 25, 1993, CBP published Treasury Decision (T.D.) 93-88, Volume 27, which contains certain footwear definitions and 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 “Open,” it states in pertinent part; ‘In open heeled shoes, all or part of the back of the wearer’s heel can be seen.’ Under the heading “Protection,” it states in pertinent part; ‘footwear that is a “protection” against water includes: #1. Any item which will keep your foot dry if you linger in a pool of water which is more than 2 inches deep and #4. Molded rubber clogs, which are the same shape as traditional Dutch wooden shoes. They are used in gardening on wet terrain.’ It is our opinion that the back of the clog is high enough to not expose any portion of the wearer’s heel and high enough (3 inches from the outer sole to the top line) to keep the wearer’s foot dry if they linger in a pool of water which is more than 2 inches deep. The applicable subheading for the “garden clog,” style name “Exact” will be 6401.99.3000, Harmonized Tariff Schedule of the United States (HTSUS), 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; which does not cover the ankle or knee; 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. The rate of duty will be 25% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stacey Kalkines at 646-733-3042. Sincerely,   Thomas J. Russo                                Director National Commodity Specialist Division