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The March 27, 2013 Customs Bulletin contains a notice of proposed approach to the classification of footwear covered by Additional U.S. Note 5 to Chapter 64, Harmonized Tariff Schedule of the United States (HTSUS). Written comments must be received on or before May 28, 2013. The following are excerpts from the notice. Footwear is classified in Chapter 64, HTSUS. Note 4(b) to Chapter 64, HTSUS, which covers footwear, states as follows:
CBP has previously classified certain styles of footwear featuring outer soles of rubber or plastics to which textile material has been added under heading 6405, HTSUS, which provides for “[o]ther footwear”. Thereafter, the US International Trade Commission (ITC) conducted an investigation pursuant to 19 U.S.C. §3005(a) (Inv. No. 1205–8) in response to a request from the Department of the Treasury regarding certain footwear featuring outer soles of rubber or plastics to which a layer of textile material has been added. The request stated that changes to the HTSUS would promote the uniform application of the Harmonized Commodity Description and Coding System Convention as well as alleviate unnecessary administrative burdens. Taking into consideration comments received during the course of its investigation, the ITC issued its final report on February 18, 2011. Based on the results of the ITC final report, Presidential Proclamation 8742 was issued on October 31, 2011, wherein the President proclaimed certain modifications to the HTSUS, including the insertion of Additional Note 5 to Chapter 64 (Note 5). Presidential Proclamation 8742 was published in the Federal Register (76 Fed. Reg 68271) on November 3, 2011. Note 5 states as follows:
Accordingly, Note 5 provides the authoritative legal standard to be used in determining the classification of footwear with textile material on the outer soles. CBP has the responsibility of administering this standard. On January 23, 2012, CBP posted on its website a request for comments on the best approach for administering Note 5. After considering the responses to the preliminary request for comments and further research and consideration, CBP proposes to recognize ISO 20871 in assessing the characteristics of textile material attached to outer soles. 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. In contrast to the tests referenced above, 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 generally expressed in terms of relative mass lost. However, CBP proposes to base the determination of whether textile material possesses the characteristics normally required for use of an outer sole on whether the textile material subjected to ISO 20871 is still present on the samples after testing. Although CBP concedes that this is a more permissive standard than those for footwear normally subjected to ISO 208711, employing the ISO 20871 test in this manner is an appropriate practical and efficient means to apply the standard established by Note 5 and should yield consistent results. Accordingly, 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 C.F.R. Part 177) or in response to a request for information via CBP Form 28, importers should present independent laboratory reports applying ISO 20871 as described above. Similarly, CBP may conduct its own testing applying ISO 20871 on footwear samples when circumstances warrant. Before finalizing this proposal, consideration will be given to any written comments timely received on or before May 28, 2013. |
