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U.S. Customs Finalizes Its Durability Test For Footwear With Textile Outer Soles

On November 13, 2013, U.S. Customs and Border Protection (“CBP”) issued a General Notice to inform the public how it will administer Additional U.S. Note 5 to chapter 64 of the Harmonized Tariff Schedule of the United States (“HTSUS”).

U.S. Note 5 specifies that to be classified as footwear having a textile outer sole in Chapter 64, HTSUS, the textile outer sole must possess “the characteristics usually required for normal use of an outer sole, including durability and strength.” See Customs Bulletin and Decisions, vol. 47, No. 45, pages 57-67 (November 13, 2013). If textile sole components meet the durability standard then the shoes will be classified in Heading 6405, HTSUS. If the textile sole components do not meet the durability standard, then the textile will be disregarded and the footwear will generally be classified in Headings 6402 and 6404, HTSUS, and possibly subject to higher duty rates.

In this publication, CBP accepted the standard that it previously proposed to interpret U.S. Note 5. The applicable test will be ISO 20871 (“Footwear – Test Methods for Outsoles – Abrasion Resistance”) which is published by the International Organization for Standardization and available for purchase at http://www.iso.org/iso/home.html. CBP characterized the test procedure in ISO 20871 as a good measure of the “wearability” of the constituent material of outer soles without regard to specific conditions of use (age, weight, and particular usage) or commercial acceptability.

The test procedure will apply only to “outdoor footwear” because presumably textile soles on indoor shoes do not need to be as durable as the textile soles on outdoor shoes. CBP will determine on a case-by-case basis “whether testing is required” to determine whether a particular article is “indoor” footwear, including “house slippers” defined in Note 1(d) to Chapter 64, HTSUS. The test procedure will also apply only to textile material that has been added to, or incorporated into, a substrate of another material such as rubber or plastic. Testing will not be required where the textile material is the only constituent material of the outer sole. This category of shoes with only textile soles will be relatively small in the overall context of footwear imports.

CBP has also stated that it will apply the ISO 20871 test procedures, but not the ISO 20871 test standard. This means that three samples must be tested in accordance with the testing specifications in ISO 20871. However, the test results will not be measured quantitatively, as specified in ISO 20871. Instead, the footwear will pass the test for CBP purposes (that is, classifiable as footwear having textile outer soles for purposes of Note 5) “if textile material is present on any one of the three samples taken from the footwear sample and tested in accordance with ISO 20871.” We understand that CBP interprets “present” to mean visible to the naked eye.

One commenter noted that patterned outer soles having recesses and protrusions might prevent the abrader in ISO 20871 from coming into contact with the textile material in the recesses, thus ensuring its survival during testing and skewing the test results. CBP agreed that in many cases outer soles have patterns that make it “impracticable” to collect a flat sample. Noting that the test protocol requires the three samples be taken from the portion of the outer sole that comes “in contact with the ground,” CBP stated that it has not determined the maximum depth, if any, at which point recessed material will no longer be “in contact with the ground” and disregarded for purposes of evaluating the test results.

CBP suggests that importers test the footwear under ISO 20871 prior to importation in order to demonstrate the exercise of reasonable care in classification in heading 6405. However, there does not appear to be any need to test footwear if the importer intends to classify such footwear in Headings 6402 and 6404, HTSUS. CBP reserves the right to request a copy of the test results from the importer, request the importer to conduct testing, or request footwear samples from the importer in order to conduct its own testing at the CBP Office of Laboratory and Scientific Services.

If you would like additional information or have questions, please contact EACCNY member Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP: Either Robert Silverman or Robert Seely at 212-557-4000, or Erik Smithweiss at 213-624-1970.