CBP Finds Foam Footwear Not Subject to ITC Exclusion Order

Foam footwear previously barred from entry due to an exclusion order from the International Trade Commission may enter the U.S. following a reexamination by CBP, even though the issue wasn't protestable, CBP said in ruling H323683, released May 16. The ruling was sparked by a Jan. 31 protest by Triple T Trading, which argued its imports of foam footwear should not have been barred from entry.

The general exclusion order on foam footwear stems from a 2011 ITC decision (ITC Inv. No. 337-TA-567) after the ITC found that imported footwear had infringed on patents owned by Crocs. The ITC originally found no violation in 2008 but vacated that decision following an appeal to the U.S. Court of Appeals for the Federal Circuit and remand.

Triple T protested that its foam footwear didn't infringe on Crocs' patents and was incorrectly barred from entry based on the exclusion order. Triple T argued that the patents required "direct contact" between the strap and body of the shoe that develops "friction." The company said its footwear incorporated fleece that prevented such direct contact and therefore wasn't a patent violation.

CBP said refusal of entry based on exclusion orders was generally not protestable, but the issue "may be reviewed pursuant to a request for internal advice," which came from CBP's Apparel, Footwear and Textiles Center of Excellence and Expertise. Therefore, CBP found it had the authority to address the substance of Triple T’s challenge and determine whether the articles at issue are subject to the exclusion order.

CBP noted that in December 2020, Double Diamond Distribution, a respondent from the underlying ITC investigation, filed a request for an advisory opinion to determine whether its new products fell within the scope of the ITC exclusion order. The ITC determined that Double Diamond’s new products included permanently affixed plastic washers that prevented any direct contact between the strap and the base of the shoe, and thus didn't fall within the scope of the exclusion order. During that advisory opinion proceeding, Crocs said that because the washers “are temporary in nature and intended to be removed upon importation or purchase, such footwear would still fall within the scope of the Remedial Orders.”

In Triple T's original entries, "it was CBP’s understanding ... that the fleece within the articles at issue was easily removable." Noting the ITC advisory opinion, CBP then reexamined the articles to confirm whether the fleece was removable and if it prevented direct contact between the moldable materials of the strap and base sections. CBP confirmed the fleece is “‘permanently affixed," and prevents direct contact between the materials of the strap and base, meaning the shoes at issue aren't covered by the remaining patent claims in the exclusion order and may be entered for consumption into the U.S.