U.S. Customs Adopts ISO 20871 “Footwear – Test Methods for Outsoles – Abrasion Resistance” to Determine the Tariff Classification of Footwear with Outer Soles of Textile Material

November 15, 2013

On November 13, 2013, U.S. Customs and Border Protection published notice in Customs Bulletin and Decisions, Vol. 47, No. 45 (http://www.cbp.gov/bulletins/Vol_47_No_45_Title.pdf) of the test method it will accept to support the tariff classification of footwear under the provisions for footwear with textile material on the outer sole, as intended by Additional U.S. Note 5 to Chapter 64, HTSUS (“Note 5”).  The application and implementation of this rule can have a significant impact on the tariff classification and amount of duty footwear importers will be required to pay.

Background

Footwear is generally classifiable according to the material of both the upper (i.e., leather) and the outer sole (i.e., rubber).  Note 4(b) to Chapter 64, HTSUS, which covers footwear, provides that the constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground.  Thus, if the constituent material of the outer sole that has the greatest surface area in contact with the ground is a textile, then it may have a significantly lower tariff rate than footwear that has rubber as its controlling constituent material.

Concern over the application of this rule arose, as some observers believed that the application of a textile material over the otherwise rubber material on the outer sole was evasive, as the textile material did not serve a functional purpose vis a vis the footwear.  Subsequently, the International Trade Commission proposed a new rule consistent with the International Harmonized System, and the changes were adopted by Presidential Proclamation (8742) in October 2011, with the insertion of Additional Note 5 to Chapter 64.  Note 5 provides:

For the purposes of determining the constituent material of the outer sole pursuant to Note 4(b) to this Chapter, no account shall be taken of textile materials which do not possess the characteristics usually required for normal use of an outer sole, including durability and strength.

Accordingly, Note 5 provides the authoritative legal standard to be used in determining the classification of footwear with textile material on the outer soles; however, following the publication of “Note 5,” considerable controversy arose over how to assess the characteristics of textile materials on the outer sole.

Subsequently, CBP issued a proposal to recognize ISO standard 20871, entitled “Footwear – Test Methods for Outsoles – Abrasion Resistance,” for assessing the characteristics of textile material attached to outer soles.  See Customs Bulletin, Vol. 47, No. 14, March 27, 2013. 

Adoption of the Final Rule

After considering numerous responses to its proposal, CBP determined that ISO 20871 would be used to assess the characteristics of textile material attached to outer soles.  ISO 20871 is a technical report that sets forth the acceptable performance standards for footwear subject to the ISO 20871 procedure.  (The technical standard may be purchased on Amazon for $60.)  Under the test, CBP explains 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.

The performance standards consist of various figures of mass lost due to the ISO 20871 test and depend on the type of footwear being tested, ranging from general purpose sports footwear to infant footwear to fashion footwear.

Accordingly, Importers that wish to utilize the “other footwear” classification in heading 6405 (with outer soles of textile material) will have to demonstrate that the terms of Note 5 have been met by presenting independent laboratory reports that apply ISO 20871 when:

  • as part of a request for prospective classification ruling:
  • in response to a request for information via CBP Form 28, or
  • attached to entry documentation

Similarly, CBP may conduct its own testing by applying ISO 20871 on footwear samples when circumstances warrant. 

As this testing procedure unfolds, there will very likely be a number of issues that will still need to be resolved.

Previous rulings issued on this issue have been superseded by Note 5, and CBP has the responsibility of administering this new standard.

If you have any questions about this or other customs issues, please contact George R. Tuttle, III at george.tuttle.iii@tuttlelaw.com or at (415) 288‑0428.

George R. Tuttle, III is an attorney with the Law Offices of George R. Tuttle in San Francisco.

 

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

 

Copyright © 2013 by Tuttle Law Offices. 

All rights reserved.  Information has been obtained from sources believed to be reliable.  However, because of the possibility of human or mechanical error by our offices or by others, we do not guarantee the accuracy, adequacy, or completeness of any information and are not responsible for any errors, omissions, or for the results obtained from the use of such information.

 

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