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HQ 952097




September 15, 1992

CLA-2 CO:R:C:M DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.1960; 6403.99.90

John B. Pellegrini, Esq.
Law Offices
Ross & Hardies
65 East 55th Street
New York, New York 1002-3129

RE: Sports footwear; Athletic footwear; Footwear for men, youths and boys; Additional U.S. Note 1(b) to Chapter 64; Commonly worn by both sexes; PC 873813 reconsidered and affirmed

Dear Mr. Pellegrini:

In a letter dated June 22, 1992, on behalf of your client Genesco, Inc., you asked this office to reconsider the result reached in PC 873813 dated May 20, 1992, issued by the District Director at New Orleans, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain Mitre brand soccer shoes.

FACTS:

The shoes involved have leather uppers and rubber/plastic outsoles. All are below the ankle.

The cleated stock numbers in men's sizes 8-1/2 and larger were classified under subheading 6403.19.45, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, sports footwear, other, for men, youths and boys, other.

The cleated stock numbers in sizes smaller than men's 8-1/2 were classified under subheading 6403.19.60, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, sports footwear, other, for other persons.

The non-cleated stock numbers in mens's sizes 8-1/2 and larger were classified under subheading 6403.99.60, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for men, youths and boys.

The non-cleated stock numbers in sizes smaller than men's 8-1/2 were classified under subheading 6403.99.90, HTSUS, as footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, for other persons valued over $2.50 per pair.

ISSUE:

Are the subject cleated and non-cleated soccer shoes in sizes smaller than men's 8-1/2 commonly worn by both sexes?

LAW AND ANALYSIS:

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.

Additional U.S. Note 1(b) to Chapter 64, which is relevant here, reads as follows:

2. 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.

You assert that the footwear involved is not commonly worn by both sexes. In support of your position you make the following arguments:

1. An examination of the styles, their colors and sizing, as well as the marketing of the shoes clearly establishes the fact that they are footwear for men and youths. The single exception is Pattern Challenge in youth sizes 10, 10-1/2 and 11.

2. Genesco cannot "prove" that the styles involved are not worn by females. However, it does know how it markets this footwear, and as the courts frequently have ruled, the manner in which an importer markets its products is
a very strong indication of how they will be used. Mast Industries v. United States, 10 CIT 549 (1985), aff'd, 786 F.2d 1144 (Fed Cir. 1986).

3. The catalog presented with the inquiry shows that Genesco markets the footwear to males. The fact that the patterns and stock numbers are not marketed to both sexes is best demonstrated by the presence of footwear designated specifically for females.

4. There are two soccer patterns, Mundial USA M, stock number 55-2104 and Lady Classic, stock number 55-2704. These stock numbers are available in adult sizes 4-12, 5-10, and 4-10. Pattern, Mundial USA, appears on the page titled "Lady Soccer," as a marketing experiment. If there is any interest in this pattern and color configuration, the pattern will be made on a woman's last. It is for this reason that the pattern appears on this page but is identified as for men.

5. The classification decision addressed here is based on the mistaken premise that athletic footwear is commonly worn by both sexes. In DeVahni International, Inc. v. United States, 66 Cust. Ct. 239, C.D. 4196 (1971), the court noted that the "commonly worn" concept could not be applied "to the class of sandals at bar" but solely to the individual style of footwear.

6. Genesco's athletic footwear is designed and marketed for men, youths and boys. It has a separate line for women and girls.

7. Based on the foregoing, it is clear that the classification of the instant footwear must be based on the characteristics and use of the particular footwear at issue, not those of the class of athletic footwear. It may be that some athletic footwear in sizes smaller than mens' size 8-1/2 is commonly worn by both sexes. Indeed, it may be true of this class of footwear. It is not true, however, of the subject footwear.

CUSTOMS POSITION

It is true that there is a separate section for women in the soccer shoe portion of the submitted Mitre catalog. However, we note that there are only two styles shown on the one "Lady Soccer" page while there are 32 on the 16 pages devoted to "Soccer" and Youth soccer." We find it significant that the main section is called "Soccer" not "Men's Soccer." We have disregarded the "Challenge" models, which are not serious soccer shoes, because you have apparently conceded that they are unisex.

It seems peculiar that women and girls, who play soccer in large numbers in the U.S., would limit their choice of shoes to the two styles on page 16. Further, it would be odd if Genesco would want them to limit their purchases to shoes that did not come from the other 6 pages. We note that the two styles on the "Lady Soccer" page appear to be identical in their style numbers, photos, and descriptions to the shoes on the "Soccer" pages 5 and 11, and the "Youth Soccer" page 19. We note that you admit that Style 55-2104 is made on a men's last and we assume that Style 55-2704 is also made on a men's last since you have not indicated otherwise.

The following analysis is based on our interpretation of the Shoe Size Classification contained in "How American Shoes are Made" published by the United States Shoe Machinery Corporation in 1961. Style Classic II M.R. 55-2704 depicted on the "Men's and "Youth's" pages of the catalog is offered in sizes shown as "Adult: 6 1/2, 13. Youth: 2-6." On the "women" page it is offered in sizes shown as "Adult: 5-10." Even if we assume that the "Adult 5-10 means Women's 5-10, we still find that the entire range of women's shoe sizes is covered by the range of youth's 2 [one size smaller than the smallest women's size: 4] to "Adult" [actually men's] 13. In the absence of evidence that these shoes are also made on women's lasts, we must conclude that they are not so made. However, production of such evidence would not in itself be proof that the other styles are not commonly worn by women.

You maintain that all styles except the two "Lady Soccer" shoes are not marketed to women. National Import Specialist Francke visited two Herman's, two Modell's, and one Spiegel's sporting goods stores in Manhattan. All five stores sold cleated soccer shoes; the first four sold Mitres. All five stores sold their soccer shoes in their "cleated" sections, not in their "men's" or "women's" sections.

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 is sold to females. We have conducted an informal survey of stores in the Washington D.C. area which sell sports footwear including Mitre soccer shoes. The unanimous response of those interviewed was that females do wear cleated and non- cleated Mitre brand soccer shoes in sizes smaller than men's 8- 1/2. Those interviewed estimated that the amount of such sales in the particular size ranges clearly exceeded 5% of total sales.

HOLDING:

The cleated and non-cleated Mitre style soccer shoes smaller than men's size 8-1/2 are commonly worn by both sexes.

The cleated stock numbers in sizes smaller than men's 8-1/2 are dutiable at the rate of 10% ad valorem under subheading 6403.19.60, HTSUS.

The non-cleated stock numbers in sizes smaller than men's 8- 1/2 are dutiable at the rate of 10% ad valorem under subheading 6403.99.90, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division


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