Athletic footwear; Footwear for men, youths and boys; Additional U.S. Note 1(b) to Chapter 64; Commonly worn by both sexes; HRL 950439 reconsidered and affirmed.

HQ 951361 July 24 1992 CLA-2 CO:R:C:M 951361 DFC CATEGORY: Classification TARIFF NO.: 6403.91.60; 6403.99.60 Area Director of Customs New York Seaport 6 World Trade Center New York, New York 10048 RE: Athletic footwear; Footwear for men, youths and boys; Additional U.S. Note 1(b) to Chapter 64; Commonly worn by both sexes; HRL 950439 reconsidered and affirmed. Dear Sir: In a memorandum dated March 16, 1992, you asked that this office reconsider the result reached in Headquarters Ruling Letter (HRL) 950439 dated March 16, 1992, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain athletic footwear. FACTS: The footwear which was the subject of HRL 950439 was Mitre's "Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness and X.T. Power. In that ruling Customs concluded that these styles in youth's sizes 11-1/2 and larger are not commonly worn by both sexes. Consequently, these styles were classified as leather footwear for men, youths and boys in subheadings 6403.91.60 or 6403.99.60 HTSUS, depending upon whether or not the shoe covered the ankle. You maintain that the "Street Hot" styles in youth' sizes 11-1/2 and larger are properly classifiable under subheading 6403.91.90, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, covering the ankle, other, for other persons or under subheading 6403.99.90, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other, other, for other persons, valued over $2.50 per pair, depending upon whether or not the footwear covers the ankle. ISSUE: Are the Mitre "Street Hot" styles commonly worn by both sexes? -2- LAW AND ANALYSIS: Briefly, the rationale in HRL 950439 for concluding that the styles in issue are not commonly worn by both sexes was that these styles by virtue of their colors and sizing as well as their marketing establishes that they are in fact footwear for boys. You argue that HRL 950439 reached the wrong result for the following reasons: 1. The fact that boys do not wear girls' colors or style names in footwear is irrelevant in unisex decisions. Girls can and do wear boys' colors and style names in footwear. If a style is not available in girls' sizes, they buy the boys' sizes. Sales of these shoes to girls will not be "uncommon." Girls use of boys' shoes make the boys' shoes "unisex" for Customs purposes. 2. The importer presented absolutely no evidence (as Customs understands evidence) that sales to girls are "uncommon." His claim by itself is not evidence. 3. "Street Hot" is a term that in today's social context is used to market products to boys and girls, men and women. 4. Although we no longer have the catalog, we recall that there were girls' pictures with the boys' styles, meaning that the boys' styles are marketed to boys and girls. The lack of boys' pictures with the girls' styles is, as stated in 1 (above), totally irrelevant. 5. HRL 950439 has created a new unisex definition which is quite different from the old one on which Headquarters has ruled on a number of times. Headquarters has ruled that only youths' sizes smaller than 11-1/2 are unisex. Its previous position was that all shoes smaller than men's 8-1/2 were unisex. Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes. -3- Additional U.S. Note 1(b) to Chapter 64, which is relevant here, reads as follows: 1. For the purposes of this chapter: (b) the term "footwear for men, youths and boys" covers footwear of American Youths'size 11-1/2 and larger for males, and does not include footwear commonly worn by both sexes. In the case of DeVahni International Inc. v. United States, 66 Cust. Ct. 229, C.D. 4196 (1971) involving the classification of leather sandals, the court stated that "[i]n this instance plaintiff is not seeking to establish that the water buffalo sandals in issue are 'commonly worn' by women, but rather that they are not 'commonly worn' by women." The court then cited the definition of the word "common" from Websters Third New International Dictionary (1966) which states: 4a Occurring or appearing frequently esp. in the ordinary course of events: Not unusual: Known or referred to widely or generally because of frequent occurrence. The court then referred to the definition of the word "uncommon" from Funk and Wagnalls New Standard Dictionary of the English language (1956) as follows: Exceptional, infrequent, odd, peculiar, rare, singular or unusual. The court noted that the "commonly worn" concept could not be applied "to the class of sandals at bar" but solely to the individual type of footwear at issue. We agree with your first three contentions except for the unqualified statement that "[g]irls use of boys' shoes make the boys' shoes 'unisex' for Customs purposes." With respect to your fourth contention, we note that the catalogs labelled "B" and "C" portray both boys and girls on their front covers. The unlabelled catalog portrays a boy on its front cover. At first glance one would conclude that the shoes advertised therein including those in issue would be marketed to both boys and girls. However, while the covers portray both boys and girls, the advertising material on the remaining pages clearly delineates between girls' and boys' styles of footwear. In fact, the boys portrayed on the front covers of the brochures are wearing boys' style shoes while the girls are wearing girls' style shoes. Consequently, we were justified in HRL 950439 in concluding that Genesco does market the styles in issue as youths and boys footwear. -4- In the past Customs has taken the position that footwear is considered to be commonly worn by both sexes when 5% or more of the footwear will be sold to females. We have conducted an informal survey of stores which sell athletic footwear in the Washington D.C. area. The consensus of the salespeople interviewed was that young females do in fact wear shoes which are designed and marketed to young males. However, there was almost universal agreement that although sales of youths and boys shoes to females are not recorded as such, the amount of such sales are estimated not to approach 5% of total sales in the particular size ranges involved. With respect to your fifth contention, it is not our intention to completely abolish the position that all shoes smaller than men's size 8-1/2 are unisex. Information before this office is that cleated sports footwear in men's sizes 8-1/2 and lower are commonly worn by young females. With respect to particular non-cleated athletic shoes in youths' sizes 11-1/2 and larger, we would still regard them as unisex, if it could be reasonably estimated that at least 5% of total sales were to females. HOLDING: Mitre's "Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness and X.T. Power are not commonly worn by both sexes. Therefore, these styles are classifiable as footwear for men, youths and boys in subheadings 6403.91.60 or 6403.99.60, HTSUS, depending upon whether or not they cover the ankle. HRL 950439 is affirmed. Sincerely, John Durant, Director Commercial Rulings Division 6cc AD NY Seaport 1cc Eric Francke NY Seaport 1cc John Durant 1cc K. Hallborg Buffalo