Reconsideration of NY N179475; Classification of footwear from China

HQ H187697 December 17, 2015 CLA-2 OT:RR:CTF:TCM H187697 MG CATEGORY: Classification TARIFF NO: 6402.99.31 Mr. John Pellegrini McGuire Woods LLP 1345 Avenue of the Americas New York, NY 10105-0106 RE: Reconsideration of NY N179475; Classification of footwear from China Dear Mr. Pellegrini: This is in response to your letter, on behalf of your client Fashion Delivers Charitable Foundation, Inc., dated September 15, 2011 and supplemental letter, dated June 11, 2012, in which you requested reconsideration of New York Ruling Letter (NY) N179475, dated September 8, 2011, which classified a child’s clog in subheading 6402.99.3171, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for “Other footwear with outer soles and uppers of rubber or plastics: 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 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: Other.” A sample has been provided and will be returned. A teleconference was held August 9, 2012. The merchandise was described in NY N179475 as follows: The submitted sample identified as style #939553, is a closed toe/open-heel clog composed of a unit molded rubber or plastics upper and outer sole. The upper features a separate rubber or plastics heel strap which is attached to the sides of the upper by two round plastic “rivets.” You state that if this heel strap is removed, the clog would be complete and usable and suggest classification under subheading 6401.99.80, Harmonized Tariff Schedule of the United States (HTSUS), which provides for waterproof footwear. We note that heading 6401 to Chapter 64, HTSUS, 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.” Your suggested classification in heading 6401, HTSUS, as “waterproof footwear” is not applicable because the clog has an upper that is assembled by riveting. We thus affirm NY N179475. In support of classification in heading 6401, HTSUS, you argue that the strap is not an essential part of the upper. As such, you argue that the two rivets that attach the strap to the body of the instant clog should be ignored as the clog would be complete and useable if the strap was eliminated. To further this argument, you cite NY G88158, dated March 16, 2001, where stitching attached a sewn-on textile collar with an adjustable closure to the top of a boot, which was classified in heading 6401, HTSUS. We do not believe the cases to be analogous. The rivets in the instant case puncture the upper close to the sole of the shoe, the style exposes the heel of the foot, and holes puncture the top of the upper. The stitches on the boot occur high on the shin of the wearer. Hence, the ruling you cite is distinguishable. Lastly, your comparison of the strap to a loosely attached appurtenance (LAA) and the rivets to minimal stitching is unhelpful. A LAA must be purely decorative, not functional no matter how minor or non-essential, an appurtenance must be secured by minimal stitching (one or two stitches), tacking or a single rivet, and removal must not result in excessive holes rendering the upper unserviceable. Furthermore, LAAs are generally not measurable in any objective way (tassels, pom-pom). Examples of LAAs are textile flowers, fabric bows secured with minimal (one or two) stitching or a single rivet or tack, pom-poms, non-functional three-dimensional buttons, and tassels. Sequins beads, buckles, studs, decorative rivets, sewn down flowers or bows, imitation jewels, rhinestones, shells, wooden decorations etc., are generally accessories or reinforcements. See e.g; HQ H092482, citing, NY N048159, dated January 6, 2009; NY N046199, dated December 10, 2008; N046819, dated December 19, 2008; and NY N047259, dated December 19, 2008. In HQ H092482, we classified sandals in subheading 6402.99.31, HTSUS, and stated that when an ornament is attached to the upper at a single small point, it is “loosely attached” for the purposes of the second requirement. In that ruling we further determined that the removal of the ornaments would not result in excessive holes or otherwise render the upper unserviceable. Unserviceable is interpreted to mean incapable of being used or unfit for use and, because in that ruling the shoes were completely usable without their decorative attachments, they were found to be serviceable. Also, because the ornaments were not attached in the manner of a buckle or stud, or attached at multiple points, they were not embedded in the shoe and, thus, met the criteria for loosely attached appurtenances. This ruling further explains that our rulings have held that in order to be considered “loosely attached” an ornament must be attached to the upper by one or two stitches, or a single rivet or tack. In this regard, the ruling concludes that an ornament attached by more than one screw (or rivet) would not be considered a loosely attached appurtenance. The clog at issue has a rubber strap that is attached to the body of the clog by two rivets, which are embedded into each side of the clog. Therefore, it does not meet the criteria for a LAA. Moreover, even if that criteria were helpful in making the present determination, joining two component pieces (the plastic strap and the molded plastic clog) by riveting is a significant and not an incidental assembly process, which is excluded by the text of heading 6401, HTSUS. For all the aforementioned reasons, we hereby affirm NY N179475. Accordingly, the subject child’s clog is classified in heading 6402, HTSUS, specifically subheading 6402.99.31, HTSUS, which provides for “Other footwear with outer soles and uppers of rubber or plastics: 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 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: Other.” The 2015 general, column one rate of duty is 6% 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/. Sincerely, Joanne Roman Stump, Acting Director Commercial and Trade Facilitation Division