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Plastic Clogs Not Waterproof Footwear, Court Rules

Thursday, December 28, 2017
Sandler, Travis & Rosenberg Trade Report

In a Dec. 22 ruling in LF USA Inc. v. U.S. the Court of International Trade agreed with U.S. Customs and Border Protection that children’s clogs are properly classified as other footwear with outer soles and uppers of rubber or plastic under HTSUS 6402.99.31 (6 percent duty). The plaintiff had argued for classification as waterproof footwear with outer soles and uppers or rubber or plastic under HTSUS 6401.99.80 (duty-free).

The subject clogs have a closed toe and open heel, an upper and outer sole of rubber or plastic, and a separate rubber or plastic heel strap attached by a single rubber or plastic rivet at each end of the strap. The CIT states that to be classified in heading 6401 footwear must be (1) waterproof and (2) composed of single piece construction (i.e., with uppers of plastic or rubber that are neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing, plugging, or similar processes). However, the court finds that the clogs at issue are not waterproof because they can allow water or other liquid to penetrate the shoe. As a result, the court states that it does not need to address the second criterion, thus declining to rule on the whether the heel strap is an essential element of the upper and whether the upper can thus be considered to be assembled by riveting.

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