Thursday, January 04, 2018

Waterproof Footwear

A long time ago, I went to a local shoe store in search of a pair of fairly rugged work boots that I could wear in the winter when forced to work outside for some reason. I recall the sales guy telling me that a particular pair was 80% waterproof. Because I can sometimes be a jerk, I asked what that means and he just repeated that they are 80% waterproof. I asked whether that means they leak 20% of the time, or 20% of the water comes in, or that 80% of the surface area was 100% waterproof, which I am certain was the correct answer. He was unable to answer and this became a long-running joke in my house about the misuse of statistics.

I am reminded of that by LF USA, Inc. v. United States, a Court of International Trade Case involving the classification of plastic children's clogs. This is a pretty quick decision that focuses on the meaning of "waterproof." If the clogs are waterproof, they would be classified in Heading 6401, provided they also meet the other requirements. If not, they are classified as Customs determined is 6402. I envision these as Crocs-like products entirely of plastic. Surely, they would suffer no damage by being soaked in water for eternity. In that sense, they are waterproof. But, is that the legal meaning of the term?

There is no dispute about the nature of the merchandise, so this turns entirely on the meaning of the tariff.
Heading 6401 covers:

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 . . . .

Note 3 of the Additional U.S. Notes to Chapter 64 defines "waterproof" for purposes of Heading 6401 as "designed to protect against penetration by water or other liquids, whether or not such footwear is primarily designed for such purposes." The parties agree that the clogs at issue do not protect the foot against contact with water or other liquid. Plaintiff argued that the full heading shows that "waterproof" refers to the means of fixing the sole to the upper by some method other than stitching, nailing, plugging, etc. Presumably, those methods leave holes and render the shoe less than waterproof, perhaps only 80% waterproof.

The Court rejected this argument. It applied the legal note and dictionary definitions and found that footwear is waterproof when it is designed to protect against the penetration of water and other liquids. Given that clogs fail that test, the Court found in favor of the government and affirmed CBP's classification. The remaining issues in the case, thereby, fell to the wayside.

That should wrap up the CIT cases for 2017 that I will cover, I note that there are a few CAFC decision I missed when my work life got surprising busy in June. I'll catch up on those soon.


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