LF USA, Inc. v. United States , 290 F. Supp. 3d 1339 ( 2017 )

Slip Op. 17-172
UNITED STATES COURT OF INTERNATIONAL TRADE
LF USA, INC.,
Plaintiff,
Before: Claire R. Kelly, Judge
v.
Court No. 16-00087
UNITED STATES,
Defendant.
OPINION
[Denying Plaintiff’s motion for summary judgment and granting Defendant’s cross-motion
for summary judgment.]
Dated: December 22, 2017
John Blaise Pellegrini, McGuireWoods, LLP, of New York, NY, for LF USA, Inc.
Jamie L. Shookman, Trial Attorney, U.S. Department of Justice, Civil Division,
Commercial Litigation Branch, International Trade Field Office, of New York, NY, for
defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney
General, and Amy M. Rubin, Assistant Director. Of Counsel on the brief was Sheryl A.
French, Office of the Assistant Chief Counsel, International Trade Litigation, U.S.
Customs and Border Protection.
Kelly, Judge: The action before the court concerns the classification of imported
children’s clogs. Plaintiff, LF USA, Inc., moves for summary judgment, requesting the
court to find as a matter of law that Plaintiff’s imports are properly classified within
subheading 6401.99.80, Harmonized Tariff Schedule of the United States (2014)
Court No. 16-00087 Page 2
(“HTSUS”), 1 and requesting the court to order United States Customs and Border
Protection (“CBP”) to reliquidate the subject entries as such and refund the excess duties
paid with interest. Pl.’s Mot. Summary J., July 7, 2017, ECF No. 21; Pl.’s Mem. Supp.
Mot. Summary J., July 7, 2017, ECF No. 21-1 (“Pl.’s Br.”). Defendant opposes the motion
and cross-moves for summary judgment, requesting the court to find as a matter of law
that the imports are properly classified within subheading 6402.99.31, HTSUS, within
which CBP classified and liquidated the subject entries. Def.’s Cross Mot. Summary J.,
Aug. 14, 2017, ECF No. 25; Mem. Opp’n Pl.’s Mot. Summary J. and Supp. Def.’s Cross-
Mot. Summary J., Aug. 14, 2017, ECF. No. 25 (“Def.’s Br.”). For the reasons that follow,
Plaintiff’s motion is denied and Defendant’s motion is granted.
BACKGROUND
At issue is the proper classification of six entries of children’s clogs. Pl.’s
Statement of Material Facts Not In Dispute ¶ 1, July 7, 2017, ECF No. 21-2 (“Pl.’s 56.3
Statement”); Def.’s Resp. Pl.’s Rule 56.3 Statement of Material Facts to Which There Is
No Genuine Dispute ¶ 1, Aug. 14, 2017, ECF No. 25-1 (“Def.’s Resp. Pl.’s 56.3
Statement”). CBP classified and liquidated the subject entries under subheading
6402.99.31, HTSUS, Pl.’s 56.3 Statement ¶ 2; Def.’s Resp. Pl.’s 56.3 Statement ¶ 2,
which provides:
Other footwear with outer soles and uppers of rubber or plastics: Other
footwear: Other: Other: Having uppers of which over 90 percent of the
1
All references to the HTSUS refer to the 2014 edition, the most recent version of the HTSUS in
effect at the time of the last entries of subject merchandise. See Pl.’s Statement of Material Facts
Not In Dispute ¶ 1, July 7, 2017, ECF No. 21-2; Def.’s Resp. Pl.’s Rule 56.3 Statement of Material
Facts to Which There Is No Genuine Dispute ¶ 1, Aug. 14, 2017, ECF No. 25-1. The 2011 and
2013 editions of the HTSUS, in effect respectively when Plaintiff entered the rest of the subject
merchandise, are the same in relevant part to the 2014 edition.
Court No. 16-00087 Page 3
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.
Subheading 6402.99.31, HTSUS, dutiable at 6 percent.
Plaintiff timely filed administrative protests challenging CBP’s classification of the
subject merchandise under subheading 6402.99.31, HTSUS, and asserting that the
proper classification for the entries is subheading 6401.99.80, HTSUS. Pl.’s 56.3
Statement ¶ 3; Def.’s Resp. Pl.’s 56.3 Statement ¶ 3. Subheading 6401.99.80, HTSUS,
provides:
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: Other footwear:
Other: 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 foxing or a foxing-like band applied or molded at the sole and
overlapping the upper).
Subheading 6401.99.80, HTSUS, duty free. CBP denied Plaintiff’s protests. Pl.’s 56.3
Statement ¶ 4; Def.’s Resp. Pl.’s 56.3 Statement ¶ 4.
Plaintiff commenced this action to contest CBP’s denial of its protests. Summons,
May 25, 2016, ECF No. 1; Compl., July 20, 2016, ECF No. 6. Plaintiff alleges that the
subject merchandise was improperly classified within subheading 6402.99.31, HTSUS,
and is instead classifiable within subheading 6401.99.80, HTSUS. Compl. ¶¶ 12–13.
Specifically, Plaintiff alleges that the subject merchandise is classifiable within
subheading 6401.99.80, HTSUS, id. at ¶ 13, because the shoes are waterproof and
Court No. 16-00087 Page 4
complete and fully functional without the back strap, such that the strap is not an essential
element of the upper. Pl.’s Br. 3, 7–13. Plaintiff contends that the shoe’s backstrap is an
“auxiliary element of the shoe,” id. at 3, which does not assemble the upper, as would
preclude classification within subheading 6401.99.80, HTSUS. Id. at 3, 8–10. Defendant
contends that the shoes are not classifiable within subheading 6401.99.80, HTSUS,
because they are not waterproof for classification purposes, the rubber strap is an
essential part of the upper rather than an attachment, and the upper is assembled by
riveting. See Def.’s Br. 7–19. Defendant argues that the shoes are precluded from
classification within subheading 6401.99.80, HTSUS, and are accordingly properly
classified within subheading 6402.99.31. Id. at 19–20.
JURISDICTION AND STANDARD OF REVIEW
The court has “exclusive jurisdiction of any civil action commenced to contest the
denial of a protest, in whole or in part, under [Tariff Act of 1930, as amended, 19 U.S.C.
§ 1515 (2012)],” 28 U.S.C. § 1581(a) (2012), and reviews such actions de novo. 28
U.S.C. § 2640(a)(1) (2012).
The court will grant summary judgment when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” USCIT R. 56(a). In order to raise a genuine issue of material fact, it is insufficient
for a party to rest upon mere allegations or denials, but rather that party must point to
sufficient supporting evidence for the claimed factual dispute to require resolution of the
differing versions of the truth at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–
49 (1986); Processed Plastic Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006);
Court No. 16-00087 Page 5
Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835–36
(Fed. Cir. 1984).
UNDISPUTED FACTS
The subject merchandise, six entries of imports of children’s clogs, entered at the
port of Los Angeles between 2011 and 2014. Pl.’s 56.3 Statement ¶ 1; Def.’s Resp. Pl.’s
56.3 Statement ¶ 1. The clogs have a closed toe and open heel. Pl.’s 56.3 Statement ¶
8; Def.’s Resp. Pl.’s 56.3 Statement ¶ 8. The clogs have “an upper and outer sole of
rubber or plastics” and “a separate rubber or plastics heel strap,” which is “attached” by
“single rubber or plastic rivet at each end of the strap.” Pl.’s 56.3 Statement ¶ 8; Def.’s
Resp. Pl.’s 56.3 Statement ¶ 8. “The strap may be moved forward to rest on the front of
the clog.” 2 Pl.’s 56.3 Statement ¶ 9; Def.’s Resp. Pl.’s 56.3 Statement ¶ 9. The subject
merchandise “does not provide protection against water, oil, grease, or chemicals or cold
or inclement weather.” Pl.’s 56.3 Statement ¶ 14; Def.’s Resp. Pl.’s 56.3 Statement ¶ 14.
2
Plaintiff contends that “[t]here is agreement that the clog is complete and usable as footwear
without the strap or with the strap moved forward to rest on the front of the clog.” Pl.’s Br. 9.
However, Defendant does not admit as an undisputed fact that the clog is complete and usable
without the strap in place at the back of the heel. See Def.’s Resp. Pl.’s 56.3 Statement ¶ 12.
Specifically, Defendant
[a]vers that it is unclear what is meant by “complete” and “useable,” as these terms
are not defined. Admits that a user could wear the imported footwear without the
rubber strap or with the strap moved forward to rest on the front of the clog, but
avers that the strap is an essential part of the imported footwear because it “can
be used to secure the shoe to the foot,” and because a user’s foot might slip out
of the imported footwear if that person were to wear it without the strap, or with the
strap moved forward to rest on the front of the clog.
Id. (citations omitted). Accordingly, the court does not consider the parties to be in agreement as
to whether the clog is “complete and usable as footwear without the strap” in place at the back of
the heel, despite Plaintiff’s statement to the contrary. See Pl.’s Br. 9. This disagreement is not
relevant to the court’s determination of the case.
Court No. 16-00087 Page 6
DISCUSSION
Classification involves two steps. First, the court determines the proper meaning
of the tariff provisions, which is a question of law. See Link Snacks, Inc. v. United States,
742 F.3d 962, 965 (Fed. Cir. 2014). Second, the court determines whether the subject
merchandise properly falls within the scope of the tariff provisions, which is a question of
fact. Id. Where there is no genuine “dispute as to the nature of the merchandise, then
the two-step classification analysis collapses entirely into a question of law.” Id. at 965–
66 (citation omitted). In such a case, the court must determine “whether the government’s
classification is correct, both independently and in comparison with the importer’s
alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984). The
court must find the correct classification, irrespective of the subheadings asserted by the
parties. See id.A. The Meaning of the Tariff Terms
Classification of merchandise under the HTSUS is governed by the principles set
forth in the General Rules of Interpretation (“GRIs”) and the Additional United States
Rules of Interpretation. See Roche Vitamins, Inc. v. United States, 772 F.3d 728, 730
(Fed. Cir. 2014). The GRIs are applied in numerical order beginning with GRI 1 which
provides that “classification shall be determined according to the terms of the headings
and any relative section or chapter notes,” La Crosse Technology, Ltd. v. United States,
723 F.3d 1353, 1358 (Fed. Cir. 2013), which are part of the HTSUS statute. BenQ Am.
Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011). The Additional U.S. Notes
included within the Chapter Notes “‘are legal notes that provide definitions or information
Court No. 16-00087 Page 7
on the scope of the pertinent provisions or set additional requirements for classification
purposes.’” Del Monte Corp. v. United States, 730 F.3d 1352, 1355 (Fed. Cir. 2013)
(quoting What Every Member of the Trade Community Should Know About: Tariff
Classification 32 (U.S. Customs & Border Prot. May 2004). These Additional U.S. Notes
are also part of the legal text of the HTSUS, see Preface at 1 n.2, HTSUS, and are
accordingly “statutory provisions of law.” Del Monte Corp., 730 F.3d at 1355 (internal
quotation marks omitted).
The terms of the HTSUS are “construed according to their common and
commercial meanings, which are presumed to be the same.” Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing Simod Am. Corp. v. United States,
872 F.2d 1572, 1576 (Fed. Cir. 1989)). The court defines HTSUS tariff terms relying upon
its own understanding of the terms and “may consult lexicographic and scientific
authorities, dictionaries, and other reliable information sources.” Carl Zeiss, Inc., 195
F.3d at 1379 (citation omitted). The court may also be aided by the Harmonized
Commodity Description and Coding System's Explanatory Notes (“Explanatory Notes”) to
help construe the relevant chapters where appropriate. See StoreWALL, LLC v. United
States, 644 F.3d 1358, 1363 (Fed. Cir. 2011). Although the “Explanatory Notes are not
legally binding, [they] may be consulted for guidance and are generally indicative of the
proper interpretation of a tariff provision.” Roche Vitamins, 772 F.3d at 731.
Heading 6402, HTSUS, under which CBP liquidated Plaintiff’s merchandise,
covers “Other footwear with outer soles and uppers of rubber or plastics.” Heading 6402,
HTSUS. Heading 6401, HTSUS, covers “Waterproof footwear with outer soles and
Court No. 16-00087 Page 8
uppers of rubber or plastics.” Heading 6401, HTSUS. No other heading applies to
footwear with outer soles and uppers of rubber or plastics. See Chapter 64, HTSUS.
Heading 6402 is an “other” category for footwear with outer soles and uppers of rubber
or plastics not classifiable within heading 6401.
The court must first look to the words of the tariff to discern its meaning. Plaintiff’s
preferred heading 6401, HTSUS, covers “[w]aterproof 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.”
Heading 6401, HTSUS. Note 3 of the Additional U.S. Notes to Chapter 64 provides that
“[f]or the purposes of heading 6401, ‘waterproof footwear’ means footwear specified in
the heading, designed to protect against penetration by water or other liquids, whether or
not such footwear is primarily designed for such purposes.”3 Additional U.S. Note 3,
Chapter 64, HTSUS. Therefore, waterproof footwear must protect the foot by not allowing
water or other liquid to penetrate the shoe. Plaintiff suggests a much narrower
interpretation of the phrase “waterproof footwear.” See Pl.’s Br. 7–8; see also Pl.’s Sur-
3
Several dictionary definitions aid the court in discerning the common and commercial meaning
of “waterproof.” See Waterproof, Oxford English Dictionary Vol. XIX, 1003 (J.A. Simpson & E.S.C.
Weiner eds., Oxford University Press, 2nd ed. 1989) (Waterproof: impervious to water; capable
of resisting the deleterious action of water.); Waterproof, Webster’s Third New International
Dictionary 2584 (Philip Babcock Gove, Ph.D. and Merriam-Webster Editorial Staff eds., Merriam-
Webster, Incorporated 1993) (Waterproof: 1a: impervious to water: as covered or treated with a
material (as a solution of rubber) to prevent permeation by water.); Waterproof, oed.com, available
at http://www.oed.com/view/Entry/226269?rskey=D3Xshs&result=1&isAdvanced=false#eid (last
visited Dec. 19, 2017) (Waterproof: Impervious to water, impermeable; That is not damaged or
washed away by water.); Waterproof, Merriam-Webster.com, available at https://www.merriam-
webster.com/dictionary/waterproof (last visited Dec. 19, 2017) (Waterproof: Impervious to water;
Especially: covered or treated with a material (such as a solution of rubber) to prevent permeation
by water.).
Court No. 16-00087 Page 9
Reply 2, Oct. 27, 2017, ECF No. 32-1. Plaintiff argues that the tariff language “the uppers
of which are neither fixed to the sole nor assembled by stitching, riveting, nailing,
screwing, plugging or similar processes” suggests that the term “waterproof footwear”
refers only to the method of assembling the footwear. Pl.’s Br. 7–8 (“The limited scope
of the prohibition strongly suggests that ‘waterproof’ refers to the means of assembly. It
is not intended to mean that footwear must be impervious to water.”).
In the phrase “waterproof footwear,” the word “waterproof” modifies “footwear,” not
assembly or construction. 4 Therefore the footwear is what protects, not what is protected.
Further, contrary to Plaintiff’s position, the words of the heading indicate that the drafters
envisioned two requirements for footwear covered within heading 6401: 1) that the
footwear is waterproof, and 2) that the footwear is composed of single piece construction.
See Heading 6401, HTSUS. This interpretation is reinforced by the accompanying
Explanatory Notes, which provide that “[n]on-waterproof footwear [of rubber or plastics]
produced in one piece (for example, bathing slippers)” are classifiable within heading
6402. Explanatory Note 64.02(f) to Chapter 64 (2014). By identifying “non-waterproof
footwear” of rubber or plastics produced in one piece as a category distinct from
waterproof footwear, the clarification indicates that, even if footwear is made of rubber or
plastics and is of single construction, the footwear must still also be waterproof to be
classifiable within heading 6401. The Explanatory Note therefore confirms that there are
4
Further, the Explanatory Notes clarify that heading 6401 covers footwear “of rubber . . . , plastics
or textile material with an external layer of rubber or plastics being visible to the naked eye . . .,
provided the uppers are neither fixed to the sole nor assembled by the processes named in the
heading.” Explanatory Note 64.01 to Chapter 64 (2014) (emphasis in original). This phrasing
also clarifies that the waterproof requirement does not refer to the method of assembly.
Court No. 16-00087 Page 10
two separate requirements to classification within heading 6401. It indicates that
“waterproof footwear” means something more than footwear made of plastics or rubber.
See Heading 6401, HTSUS. Accordingly, Plaintiff’s more narrow interpretation of
“waterproof footwear” is unpersuasive. 5
Plaintiff also argues that a narrow interpretation of heading 6401 is necessary,
contending that, without such an interpretation, subheading 6401.99, which provides for
footwear “[d]esigned to be worn over, or in lieu of other footwear as a protection against
water,” would not make sense. See Pl.’s Br. 8. Plaintiff’s theory seems to be that if all
subheadings within heading 6401 were meant to be impervious to water, then this
subheading would not be necessary. Plaintiff’s argument ignores the fact that subheading
6401.99, HTSUS, identifies a special subset of waterproof footwear, i.e., footwear that is
“designed to be worn over, or in lieu of, other footwear as protection against water, oil,
grease or chemicals or cold or inclement weather.” See Subheading 6401.99, HTSUS.
Contrary to Plaintiff’s suggestion, it is not illogical that there may be some footwear which
is specifically designed to provide protective properties for the user, and that those styles
of footwear would also be considered “waterproof footwear.” Furthermore, Additional
U.S. Note 3 to Chapter 64 specifies that “waterproof footwear” refers to footwear that is
“designed to protect against penetration by water or other liquids, whether or not such
footwear is primarily designed for such purposes.” See Additional U.S. Note 3, Chapter
5
The court rejects Plaintiff’s argument that “waterproof footwear” cannot mean “impervious to
water” because “Heading 6401 includes HTSUS subheadings 6401.99.80 and 6401.99.90, both
cover footwear that does not provide protection against water, i.e., footwear that is not impervious
to water,” see Pl.’s Br. 8, because it assumes the answer to the question at issue here: whether
subheadings 6401.99.80 and 6401.99.90, HTSUS, require that the footwear be impervious to
water.
Court No. 16-00087 Page 11
64, HTSUS. This phrasing recognizes that some waterproof footwear is primarily
designed for waterproof protection while other waterproof footwear is not designed
primarily to protect the wearer from water or other liquids, but nonetheless is designed to
be waterproof.
Heading 6401 also requires that footwear be made of plastic or rubber uppers
which are “neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing,
plugging or similar processes.” Heading 6401, HTSUS. The HTSUS does not define
“uppers,” and the parties both proffer definitions for the term. Defendant supplied several
sources to support its interpretation of “upper” as
‘. . . part of the shoe above the separate sole or that portion of the shoe
which covers the sides and top of the foot if there is no separate sole. An
“Upper” can cover the whole leg, thigh, hips, and chest (e.g., fishermen’s
chest waders) or can consist simply of straps, laces or thongs (e.g., Roman
sandals).’ This definition is confirmed by dictionaries, which define the
“upper” as the part of the shoe above the sole that covers the top and sides
of the foot.
Def.’s Br. 9 (quoting Footwear Definitions, Treasury Decision 93-88, 27 Cust. B. & Dec.
312, 312 (Oct. 25, 1993) (“Treasury Decision 93-88”); other citations omitted). Plaintiff
“asserts that the upper is that part of a shoe covering the top and sides of the foot when
the upper and sole are a unit.” Pl.’s Reply Mem. Supp. Its Mot. Summary J. & Opp’n
Def.’s Cross Mot. Summary J. 3, Sept. 14, 2017, ECF No. 26. Plaintiff quotes Treasury
Decision 93-88 for the interpretation that “‘[t]he “upper” is[]that portion of the shoe which
covers the sides and top of the foot if there is no separate sole.’” Id. The definitions
provided by Plaintiff and Defendant are not at odds. The upper is the part of the shoe
above the separate sole or that portion of the shoe which covers the sides and top of the
Court No. 16-00087 Page 12
foot if there is no separate sole. Footwear within heading 6401 must have uppers that
are “neither fixed to the sole nor assembled by stitching, riveting, nailing, screwing,
plugging or similar processes.” Heading 6401, HTSUS. This language means that
footwear covered by heading 6401 is not created using any of the prohibited processes
to affix the sole to the upper or to assemble various parts of the upper.
Heading 6402, HTSUS, covers “[o]ther footwear with outer soles and uppers of
rubber or plastics.” Heading 6402, HTSUS. Heading 6401, HTSUS, covers waterproof
footwear with outer soles and uppers of rubber or plastics. Heading 6401, HTSUS. As
heading 6402 is an “other” category for footwear not classifiable within heading 6401, the
meaning of the tariff term is dependent upon the meaning of heading 6401. “Other
footwear with outer soles and uppers of rubber or plastics” refers to footwear with outer
soles and uppers (the part of the shoe above the separate sole or that portion of the shoe
which covers the sides and top of the foot if there is no separate sole) of rubber or plastics,
which do not meet the definitions above for the tariff terms within heading 6401, HTSUS.
B. The Merchandise at Issue
Here, there is no dispute as to the nature of the subject merchandise. The parties
agree that the merchandise is children’s clogs that have a closed toe and open heel. Pl.’s
56.3 Statement ¶¶ 6, 8; Def.’s Resp. Pl.’s 56.3 Statement ¶¶ 6, 8. The parties also agree
that the footwear has “an upper and outer sole of rubber or plastics” and “a separate
rubber or plastics heel strap,” which is “attached” by a “single rubber or plastic rivet at
each end of the strap,” Pl.’s 56.3 Statement ¶ 8; Def.’s Resp. Pl.’s 56.3 Statement ¶ 8,
which “may be moved forward to rest on the front of the clog.” Pl.’s 56.3 Statement ¶ 9;
Court No. 16-00087 Page 13
Def.’s Resp. Pl.’s 56.3 Statement ¶ 9. It is undisputed that the footwear “does not provide
protection against water, oil, grease, or chemicals or cold or inclement weather.” Pl.’s
56.3 Statement ¶ 14; Def.’s Resp. Pl.’s 56.3 Statement ¶ 14.
C. The Proper Classification of the Goods
The first requirement of footwear covered within heading 6401, HTSUS, is that the
footwear is waterproof. As discussed above, “waterproof footwear” is footwear that
protects the foot by not allowing water or other liquid to penetrate the shoe. It is
undisputed that “the subject footwear does not provide protection against water, oil,
grease, or chemicals or cold or inclement weather.” Pl.’s 56.3 Statement ¶ 14; Def.’s
Resp. Pl.’s 56.3 Statement ¶ 14. 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, HTSUS.
Additionally, footwear covered by heading 6401, HTSUS, must have uppers of
plastics or rubber “which are neither fixed to the sole nor assembled by stitching, riveting,
nailing, screwing, plugging or similar processes.” Heading 6401, HTSUS. An “upper” is
the part of the shoe above the separate sole or that portion of the shoe which covers the
sides and top of the foot if there is no separate sole. The court does not need to reach
the issue as to whether the subject merchandise is footwear having “uppers of plastics or
rubber which are neither fixed to the sole nor assembled by stitching, riveting, nailing,
screwing, plugging or similar processes” because the court has found that the subject
Court No. 16-00087 Page 14
merchandise does not fit within definition of “waterproof footwear” such that it is not
classifiable within heading 6401. 6
CONCLUSION
For the foregoing reasons, the subject merchandise at issue in this case is properly
classifiable within subheading 6402.99.31, HTSUS. Therefore, Plaintiff’s motion for
summary judgment is denied and Defendant’s cross-motion for summary judgment is
granted. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:December 22, 2017
New York, New York
6
Although the court does not reach the issue here, the court has serious concerns about whether,
even if the footwear were determined to be waterproof, the subject merchandise would be
classifiable within heading 6401 because of the heel strap. Footwear classifiable within heading
6401 must have uppers that are “neither fixed to the sole nor assembled by stitching, riveting,
nailing, screwing, plugging or similar processes.” Heading 6401, HTSUS. The court interprets
this phrase to mean that footwear covered by heading 6401 does not use any of the prohibited
processes to either affix the sole to the upper or to assemble various parts of the upper. The
upper is that portion of the shoe which covers the sides and top of the foot. It is undisputed that
the subject merchandise has a plastic or rubber upper with “a separate rubber or plastics heel
strap,” which is “attached” by “single rubber or plastic rivet at each end of the strap.” Pl.’s 56.3
Statement ¶ 8; Def.’s Resp. Pl.’s 56.3 Statement ¶ 8. The strap appears to be part of the upper.
It is undisputed that the strap is attached with riveting, see Pl.’s 56.3 Statement ¶ 8; Def.’s Resp.
Pl.’s 56.3 Statement ¶ 8, and it is therefore likely that the strap would preclude the clog being
classified in plaintiff’s preferred subheading.