U.S. Customs and Border Protection (“CBP”) is in the process of determining its approach to the administration of new Additional U.S. Note 5 (“Note 5”) to Chapter 64, Harmonized Tariff Schedule of the United States (“HTSUS”), as it relates to the tariff classification of footwear with textile outer soles. New Note 5 states:

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.

Specifically, CBP is asking the public to provide comments on the interpretation of the phrase “characteristics usually required for normal use of an outer sole, including durability and strength”, and how to determine whether such characteristics are possessed by imported footwear.

Background: Federal Register Vol. 76, No. 213, dated November 3, 2011, contains Presidential Proclamation 8742 of October 31, 2011, wherein the President of the United States proclaimed the enactment of the modifications to the HTSUS, including the insertion of Note 5, set forth in Investigation No. 1205-8, which was conducted by the U.S. International Trade Commission pursuant to Section 1205(a) of the Omnibus Competitiveness Act of 1988 (19 U.S.C. §3005(a)).

Legal Authorities: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

Analysis: Note 4(b) to Chapter 64, HTSUS, states the following:

[T]he constituent material of the outer sole shall be taken to be the material having the greatest surface area in contact with the ground, no account being taken of accessories or reinforcements such as spikes, bars, nails protectors or similar attachments.

Accordingly, in addition to disregarding accessories or reinforcements in determining the constituent material of the outer sole, Note 5 directs CBP to disregard textile material that does not possess characteristics usually required for normal use of the outer sole, including durability and strength.

Prior to the issuance of Note 5, CBP has classifiedcertain 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”. As a consequence of Note 5,certain footwear may be classified elsewhere in Chapter 64, HTSUS.

The classification of the relevant footwear will be determined by CBP’s application of the phrase, “characteristics usually required for normal use of an outer sole, including durability and strength”. In a general sense, Note 5 stands for the proposition that textile material that does not hold up to the wear of a shoe should be disregarded for the purposes of ascertaining the constituent material of the outer sole.

To apply this general standard to imported merchandise, CBP is considering whether to subject relevant footwear to laboratory testing to ascertain whether the textile material on the outer sole possesses the characteristics usually required for normal use of the outer sole. Accordingly, CBP is requesting comments on whether laboratory testing would be useful or necessary to administer Note 5. If laboratory testing is utilized, CBP requests comments on what the appropriate test would be, and how to apply it to imported footwear. In the absence of laboratory testing, CBP request comments on the scope of the note.