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CBP Proposed Test Method for Textile Outer Soles

On March 21, 2013, U.S. Customs and Border Protection (“CBP”) published in the Customs Record its “Proposed Test Method for the Administration of Additional U.S. Note 5 to Chapter 64, HTSUS, concerning the Classification of Footwear with Textile Material on the Outer Sole.”   This notice will officially appear as a General Notice and Request for Comments in Customs Bulletin and Decisions, vol. 47, no. 4 on March 27, 2013.  Written comments are due on or before May 28, 2013. 

 Impact on Tariff Classification

As you may recall, the application of Additional U.S. Note 5 will determine whether a textile sole component will be considered in eligibility for classification under Heading 6405, HTSUS which contains favorable duty rates.  Even if shoes do not pass the new proposed test, they may continue to be assessed with favorable duty rates if they incorporate textile sole components.  There are favorable duty rates for a number of footwear products that incorporate textile sole components in Headings 6402 (rubber/ plastic uppers) and Heading 6404 (textile uppers.)

The Proposed Testing Method is New and Requires Study

CBP is proposing to apply a modified version of the ISO 20871 test entitled “International Standard for Footwear – Test methods for outsoles – Abrasion Resistance” (ISO 20871:2001(E); first edition 2001-12-15).  CBP explains in the General Notice that –

The protocol for ISO 20871 tests the performance of footwear outer soles by taking three samples from the subject outer sole and subjecting their surface areas to the specified abrading machine.  The samples are weighed before and after subjecting them to the abrasion testing.  … ISO 20871 is an abrasion resistance test intended for all outer soles irrespective of material.  Moreover, ISO 20871 permits the application of a single test to textile material added to all types of outer soles, not merely to rubber.  Results of the test are expressed generally in terms of relative mass loss.

However, CBP proposes to base the determination of whether textile material possesses the characteristics normally required for use of an outer sole on whether the textile material subjected to ISO 20871 is still present on the samples after testing.  Although we concede that this is a more permissive standard than those for footwear normally subjected to ISO 20871 … [as explained in ISO 20880 (“Technical Report for Footwear – Performance requirements for components for footwear – Outsoles.” ISO/TR 20880:2007(E), first edition 2007-02-15)], employing the ISO 20871 test in this manner is an appropriate practical and efficient means to apply the standard established by Note 5 and should yield consistent results.

Accordingly, in order to demonstrate that the terms of Note 5 have been met, either as part of a request for prospective ruling under the CBP regulations (19 CFR Part 177) or in response to a request for information via CBP Form 28, importers should present independent laboratory reports applying ISO 20871 as described above.  Similarly, CBP may conduct its own testing applying ISO 20871 on footwear samples when circumstances warrant.

CBP expects the laboratory to follow ISO20871 procedures for testing and for reporting “volume loss in cubic millimeters,” as set forth in section 7 of ISO20871 (“Expression of results”).  However, CBP states that it will determine whether or not “the textile material subjected to ISO 20871 is still present on the sample after testing,” which it describes as a “more permissive standard” than the performance requirements set forth in ISO 20880 for each major type of footwear.  It is not clear what CBP means by the phrase “is still present on the sample” or exactly how the “still present” test differs from the minimum mass requirements for abrasion resistance set forth in ISO 20880.

It is not clear at this time exactly how this new test will impact specific styles of footwear. Importers wishing to comment on the proposed test procedure or seeking additional information on the proposed testing procedure are encouraged to contact Robert B. Silverman, rsilverman@gdlsk.com.