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Customs Proposing Lab Test for Textile Outer Sole Durability

Thursday, March 28, 2013
By Shawn McCausland
Sandler, Travis & Rosenberg Trade Report

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. CBP is therefore 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 HTSUS Chapter 64. Comments on the proposed test are due by May 28.

This proposal is the essence of CBP’s long-awaited response on how it should administer Note 5, which it created and implemented in December 2011 to dictate whether such textile material is regarded as outer sole material for purposes of classification. The new lab 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 HTSUS heading 6405 as having a textile outer sole.

The proposed test is based on International Organization for Standardization 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 that were limited to rubber or plastic soles. However, CBP would modify the application of this 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 also 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.

The notice containing the proposal, which appears in the March 27 Customs Bulletin and Decisions (vol. 47, no. 14), addresses the public comments CBP received on this issue, including its reasons for rejecting other proposed test methods. However, the notice does not indicate how CBP came to propose ISO 20871 as a test method aside from the fact that it is applicable for all outer sole materials. The notice also provides no further guidance concerning industry advocates’ opposition to laboratory testing, particularly in the absence of a commonly-accepted standard defining the characteristics of an outer sole.

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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