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HQ 950439


February 19, 1992

CLA-2 CO:R:C:M 950439 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.60; 6403.99.60
6403.91.90; 6403.99.90

John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608

RE: Athletic footwear; reconsideration of PC 864030; footwear for men, youths and boys; Additional U.S. Note 1(b) of Chapter 64; commonly worn by both sexes; DeVahni International Inc. v. United States; Mast Industries v. United States; marketing; style

Dear Mr. Pellegrini:

This is in reference to your letter dated September 27, 1991, on behalf of Genesco Inc., requesting reconsideration of pre-entry classification ruling (PC) 864030 dated July 17, 1991, concerning the tariff classification of athletic footwear under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

PC 864030 classified certain Mitre "Street Hot" footwear 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 "...Other footwear...Other...Other... Other...For other persons...Valued over $2.50/pair." The specific footwear at issue is Mitre's "Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness, and X.T. Power. You state that these styles are boys' athletic footwear in youth sizes 8 1/2-13 1/2 and youth/adult sizes 1-8.

You contend that the athletic footwear should be classified as footwear for men, youths and boys under subheading 6403.91.60, HTSUS, as "...Other footwear...Covering the ankle...Other...For men, youths and boys...." or 6403.99.60, HTSUS, as "...Other footwear...Other...Other...Other...For men, youths and boys....," depending upon whether or not the footwear covers the ankle.

ISSUE:

Whether the subject styles of athletic footwear are for men, youths and boys pursuant to Additional U.S. Note 1(b) of Chapter 64, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Footwear is properly classified within Chapter 64, making the Chapter 64 notes applicable to this classification. Additional U.S. Note 1(b) to Chapter 64 states:

[t]he 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.

The Mitre footwear which is smaller than youths' size 11-1/2 is properly classified under subheading 6403.91.90 or 6403.99.90, HTSUS, depending upon whether or not the footwear covers the ankle. This classification is proper because the footwear does not meet qualifications found in Additional U.S. Note 1(b) to Chapter 64. Specifically, the footwear must be youths' size 11-1/2 and larger.

For footwear which is youths' size 11-1/2 and larger, an examination of whether it is commonly worn by both sexes must be determined. DeVahni International Inc. v. United States, 66 Cust. Ct. 239, C.D. 4196 (1971), involved a similar situation concerning the classification of leather sandals. In DeVahni, 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 Webster's 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.

An examination of the individual styles of footwear at issue shows that the Mitre "Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness and X.T. Power youths' size 11-1/2 and larger are not commonly worn by both sexes. The styles, their colors and sizing, as well as the marketing of the shoes establishes the fact that they are footwear for boys. The manner in which an importer markets its products is a very strong indication of how the product will be used. Mast Industries v. United States, 9 CIT 549 (1985), aff'd, 786 F.2d 1144 (Fed. Cir. 1986).

The brochures submitted exhibit that Genesco markets the footwear to boys. The brochures display the boys' styles separately from those shoes designed and marketed for and commonly worn by girls. Additionally, the girls' shoe sizes are youth 8-1/2 to 3 and adult 5-10. The style names of the girls' shoes are Sizzle, Sassy, Jazz, Blaze and Precious. The boys' shoes do not use the pastel pink color as a trim or for the laces, while the girls' athletic shoes invariably contain pastel color trim or laces. The boys' athletic shoes are designed in bold colors such as neon green, purple, blue, red, and black which contrast with the predominately pastel pink and lilac of the girls' shoes. When bolder colors such as emerald are used in the girls' shoes, shades of pink or lilac are used in combination with the bolder colors to distinguish the shoes as girls' shoes.

We recognize that young females may wear the footwear designed and marketed to the young males. However, the importer has overcome the presumption that it's footwear is of the type "commonly worn by both sexes". Therefore, the Mitre "Street Hot" footwear youths' size 11-1/2 and larger at issue are properly classified as footwear for men, youths and boys in subheadings 6403.91.60 or 6403.99.60, HTSUS, depending upon whether or not the shoe covers the ankle.

HOLDING:

The Mitre "Street Hot" footwear which is smaller than youths' size 11-1/2 is properly classified under subheading 6403.91.90 and 6403.99.90, HTSUS, depending upon whether or not the footwear covers the ankle.

The Mitre "Street Hot" footwear youths' size 11-1/2 and larger at issue are properly classified as footwear for men,
youths and boys in subheadings 6403.91.60 or 6403.99.60, HTSUS, depending upon whether or not the footwear covers the ankle.

Pre-entry classification ruling 864030 is modified according to the terms of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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