CBP Releases Long-Awaited Test Method Proposal for Footwear with Textile Soles
CBP released its long-awaited proposal outlining testing methods used to determine the classification for footwear with textile soles in the March 27 Customs Bulletin (Vol. 47 No. 14). The proposed test method would be used to administer Additional Note 5 to HTS Chapter 64, which requires textile materials that don't include the characteristics usually required for normal use of an outer sole, including durability and strength, to be disregarded when determining the constituent material for classification purposes. This is meant to help CBP ensure that a textile outer sole on footwear is actually a textile outer sole, rather than a rubber outer sole with textile fabric.
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CBP's proposal would rely on the International Organization for Standardization (ISO) test method for abrasion resistance on outer soles, known as ISO 20871. CBP proposes that in order to demonstrate that "the terms of Note 5 have been met, either as part of a request for prospective ruling under the CBP regulations (19 CFR Part 177) or in response to a request for information via CBP Form 28, importers should present independent laboratory reports applying ISO 20871," said CBP. "CBP may conduct its own testing applying ISO 20871 on footwear samples when circumstances warrant." Additional Note 5 was added to Chapter 64 of the HTS by Proclamation 8742, and is effective for goods entered or withdrawn from warehouse for consumption on or after December 3, 2011 (see 11110303). Comments on the proposal are due to CBP's Office of International Trade by May 28.
'More Permissive Standard'
Under the proposal, CBP would use a slightly modified and "more permissive" ISO 20871 as it provides the "appropriate practical and efficient means to apply the standard established by Note 5 and should yield consistent results," said CBP in the notice. ISO 20871 tests the performance of footwear outer soles by taking three samples from the outer sole and subjecting their surface areas to the specified abrasion machine. The samples are weighed before and after the testing and the results of the test are expressed in terms of relative mass lost. ISO 20871 allows for of a single test to textile material added to all types of outer soles, not only to rubber, said CBP. CBP is proposing to then decide on the classification characteristics based on whether the textile material subjected to ISO 20871 is still present on the samples after testing.
Trade groups voiced appreciation for the notice but are still in the process of digesting the potential effects. The Rubber and Plastics Footwear Manufacturers Association (RPFMA), which represents domestic footwear producers, said it was pleased to see the proposal even though it was "more than two years after the International Trade Commission issued its Final Report on the question, almost 17 months after Presidential Proclamation 8734 was published in the Federal Register, and 14 months after CBP requested public comments on the best approach to administering Note 5." Several footwear-related trade associations complained to CBP that the uncertainty was hurting footwear industries (see 12110115).
RPFMA will submit comments and intends to "carefully evaluate the proposed test, since it is not clear that it actually provides a meaningful measurement of whether textile material on an outer sole possesses the characteristics usually required for normal use of an outer sole, including durability and strength," said Marc Fleischaker, a lawyer with Arent Fox and trade counsel for RPFMA. "Preliminarily, we are concerned that the proposed standard is 'more permissive' (to quote CBP) than for footwear normally subject to ISO 20871, and we believe that the proposal may substitute ease of administration and efficiency for the strict test that the ITC, Congress and the President supported. Nevertheless, we intend to review the proposal with an open mind."
It's too early to say exactly how the proposal would affect imports of textile-bottomed footwear, said Matt Priest, president of the Footwear Distributors and Retailers of America, which represents a number of companies that import footwear. "We are still trying to explore what it actually means," and "if it will actual provide an opportunity for some footwear to come in using the fabric bottom in 6405," he said.