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CBP to Require Lab Test for Textile Outer Sole Durability

Monday, November 18, 2013
Sandler, Travis & Rosenberg Trade Report

U.S. Customs and Border Protection has finalized a requirement for a new laboratory test governing the classification of footwear with textile material added to the outer sole as of Nov. 13, 2013. The new lab test will be used to determine whether footwear that has textile material making up the majority of the outer sole material in contact with the ground is sufficiently durable to justify classification in HTSUS heading 6405 in light of Additional U.S. Note 5 to HTSUS Chapter 64. This note, which was implemented in December 2012, provides that textile materials added to the outer sole that do not possess the “characteristics usually required for normal use of an outer sole, including durability and strength,” will not be taken into account in determining the constituent material of the outer sole. Accordingly, this note excludes such footwear from classification as textile outer sole footwear under heading 6405.

While there has been no official guidance on the application of AUSN 5 since its implementation, the new lab test is CBP’s effort to define the durability standard. It is based on International Organization for Standardization test method 20871, which is an abrasion resistance test intended for all outer soles irrespective of material. If textile material applied to an otherwise rubber or plastic outer sole is still present on at least one of the three required samples on which the test is performed, the footwear can be classified under heading 6405. Otherwise, the textile material will be disregarded and the footwear classified under the appropriate provision within the headings for footwear having rubber or textile outer soles. Importers will need to present independent lab reports applying this test – as part of a request for prospective ruling, in response to a request for information via CBP Form 28, or attached to entry documentation –to demonstrate that such footwear qualifies for classification in heading 6405. 

CBP states that testing will not be necessary to meet reasonable care requirements where an importer judges that textile material obviously does not possess the AUSN 5 requirements and thus classifies its imported footwear under a Chapter 64 heading other than heading 6405. Nevertheless, CBP reserves the right to request that testing be conducted or to request samples so that it may conduct its own testing of any footwear with textile material added to the outer sole, whether or not testing was already conducted by the importer prior to importation.

It should be noted that footwear whose only outer sole material is textile will not be subject to the new test. Most indoor footwear should also be excluded, as CBP acknowledged that the test is not likely to be useful in assessing whether textile material on the outer soles of footwear worn exclusively indoors satisfies the terms of AUSN 5. However, CBP will consider the applicability of the test to indoor footwear on a case-by-case basis.

For more information about this new requirement or classifying footwear generally, please contact Deborah Stern at 305-894-1007.

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