Footwear Must Be Impervious to Water for Duty-Free Classification as Waterproof Footwear, CIT Says
Children’s clogs imported by LF USA are not classifiable in the tariff schedule as duty-free waterproof footwear, the Court of International Trade said in a decision issued Dec. 22. Despite LF’s arguments to the contrary, the court held that to be waterproof the footwear must protect the wearer’s foot from water. Instead, CBP’s classification as “other” rubber or plastic footwear was correct, the court said.
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The children’s clogs imported by LF have a closed toe and open heel, with an upper and outer sole of rubber or plastics and a separate rubber or plastic heel strap, attached by a rivet at each end of the strap. LF admitted that the clogs do not provide protection against water, oil or grease. On liquidation, CBP had classified the clogs in subheading 6402.99.31 as “other” footwear of rubber or plastics, dutiable at 6 percent.
LF protested and later filed suit, arguing the clogs should have been classified in the duty-free subheading 6401.99.80 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.” It said the term waterproof in the subheading refers to only the method of assembling the footwear, and is “not intended to mean that footwear must be impervious to water.”
In order to be classified in heading 6401 of the tariff schedule, footwear must meet two requirements: it must be waterproof, and it must have uppers of plastics or rubber that are not fixed to the sole by stitching, riveting, nailing, screwing, plugging or similar processes. The court ruled that it need not rule on that second requirement because LF’s footwear is not waterproof. “‘Waterproof footwear’ is footwear that protects the foot by not allowing water or other liquid to penetrate the shoe,” CIT said. “Accordingly, the subject merchandise does not fit within the definition of ‘waterproof footwear,’ and, as a matter of law, the subject footwear is not classifiable as ‘[w]aterproof footwear’ within heading 6401.”
(LF USA, Inc. v. U.S., Slip Op. 17-172, CIT # 16-00087, dated 12/22/17, Judge Kelly)
(Attorneys: John Pellegrini of McGuireWoods for plaintiff LF USA, Inc.; Jamie Shookman for defendant U.S. government)