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Customs Proposing a Lab Test for Textile Outer Sole Durability

Tuesday, March 26, 2013
STR Client Advisory

After more than a year of contemplating public comments, U.S. Customs and Border Protection has concluded that “laboratory testing of footwear outer soles can lend objectivity and consistency” in classification determinations; and therefore, it is proposing a new laboratory test to assess whether textile material applied to otherwise rubber or plastic outer sole material has the “characteristics usually required for normal use of an outer sole, including durability and strength,” per Additional U.S. Note 5 to Chapter 64, HTSUS. This is the essence of CBP’s long-awaited response on how it should administer Note 5, which it created and implemented in December of 2011 to dictate whether such textile material is regarded as outer sole material for purposes of classification, for which it sought comments on January 23, 2012. The test will be used to determine whether footwear that has textile material making up the majority of the outer sole material that is in contact with the ground can be classified under heading 6405, as having a textile outer sole. Comments are due by May 28, 2013. 

The proposed test is based on International Organization for Standardization (ISO) test method 20871, which is an abrasion resistance test intended for all outer soles irrespective of material (as opposed to certain methods proposed by public commenters, which were limited to rubber or plastic soles). However, CBP would modify the application of the method to a more “permissive” standard. Specifically, CBP intends to base the outer sole classification determination on whether the textile material is still present on the samples after testing, rather than the footwear-dependent mass loss applicable to the standard.

The notice containing the proposal, which will appear in the Customs Bulletin, Vol. 47, No. 14, dated March 27, 2013, addresses the public comments it received to its request last year, including reasons for rejecting other proposed test methods. However, the notice does not indicate how CBP came to propose ISO 20871 as a test method other than the fact that it is applicable for all outer sole materials. 

In addition to proposing this method as its standard for applying Note 5, the notice indicates that importers will have to present independent results of ISO 20871 testing with ruling requests and responses to Requests for Information, though CBP may also conduct its own testing. It is worth noting that industry advocates previously opposed laboratory testing, particularly in the absence of a commonly-accepted standard defining the characteristics of an outer sole. While it addressed most of the comments it received, CBP provided no further guidance on that point. 

For more information about this notice, submitting comments, or classifying footwear generally, please contact Larry Ordet at 305-894-1003 or lordet@strtrade.com.

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