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HQ 955960



August 19, 1994

CLA-2 CO:R:C:M 955960 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.90; 6403.99.90

Thomas Mattina, Area Director
U.S. Customs Service
JFK Airport
Jamaica, New York 11430

RE: IA 5/94; Basketball footwear; unisex; commonly worn by both sexes; mens, youths and boys; Additional U.S. Note 1(b) of Chapter 64, HTSUS; DeVahni International, Inc. v. United States; A. Zerkowitz & Co., Inc. v. United States; lasts

Dear Mr. Mattina:

This is in response to your memorandum of January 26, 1994, forwarding a request submitted by counsel for FILA Footwear U.S.A. Inc. (FILA), for internal advice regarding the tariff classification of basketball footwear under the Harmonized Tariff Schedule of the United States (HTSUS). Information presented in an additional submission dated February 11, 1994, and at a meeting on July 11, 1994, was considered in rendering this decision. Samples of a male last (a block or form shaped like a human foot upon which footwear is made) size 4T and a female last size 6W were submitted for our examination.

FACTS:

The footwear at issue is FILA's "M" Squad Hi-Cut and "M" Squad Low-Cut basketball shoes, styles 3B36 (1992 year model), 3B45 and 3B51 (both 1993 year models) which are all within the U.S. male size range of 1-6. The footwear was entered under either subheading 6403.91.60 or 6403.99.60, HTSUS, depending upon whether the footwear covers the ankle. Customs has proposed a rate advance to either subheading 6403.91.90 or 6403.99.90, HTSUS, depending upon whether the footwear covers the ankle. The subheadings at issue are as follows:

6403 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather...

6403.91.60 Other footwear...Covering the ankle...Other...For men, youths and boys....

6403.91.90 Other footwear...Covering the ankle...Other...For other persons....

6403.99.60 Other footwear...Other...Other...Other...For men, youths and boys....

6403.99.90 Other footwear...Other...Other...Other...For Other persons...Valued over $2.50/pair....

Counsel claims that the footwear at issue is specifically and uniquely manufactured, marketed, and sized for youths and boys, not for "girls or females," and that any use by "girls and females" is fugitive, that the shoes are marketed in boy's sizes and that one of the catalogs in which some of the shoes are depicted pictures a boy, and that a women's Hi-Cut basketball shoe, style 5B45, which is similar to style 3B45 at issue, was imported.

Additionally, counsel states that the footwear at issue is made on lasts designed specifically for youths and boys, which are different from lasts used for shoes made for women and misses. In support of this contention, an affidavit has been submitted from an employee who has been in the area of research and development in the footwear industry for more than 25 years. The affidavit states why lasts are made and the differences between male and female lasts. Moreover, the affidavit states that neither the footwear at issue or the lasts used to make the footwear were designed to properly fit girls nor are they appropriate for use by girls; the footwear at issue was designed for the male gender.

ISSUE:

Whether the subject styles of basketball 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 terms of the headings and any relative section or chapter notes...."

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

1. For the purposes of this chapter:

(b) [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 (emphasis in original).

Therefore, 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 states 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.

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. Although, there is no record or statistics of what percentage of shoes are sold to which sex, we are of the opinion that females do purchase 5% or more of the footwear at issue. An informal survey of the major retailers of athletic and other shoes in New York was conducted. The retailers clearly stated that girls buy shoes in children's shoe departments which do not designate between boys and girls shoes. Therefore, a girl purchases a basketball shoe solely on a style to their taste and on the fit. A girl may very well end up in boy's basketball shoe. Additionally, the retailers, as well as administrative staff members of a major college women's basketball team, stated that women will buy men's basketball shoes when a suitable selection is not available in the women's department.

We note that counsel did provide entry documents to show that a women's Hi-Cut basketball shoe, style 5B45, similar to style 3B45, was imported. However, the court in DeVahni stated that:

The fact that a woman's sandal of the same design is also sold is irrelevant to the issue presently before the court. It does not make the controverted sandals, specifically designed for and worn by men, anything less or other than what they are, "for men, youths, and boys."

One style of basketball shoe for women is limiting. Style 5B45 was imported in women's size 6-10 which only overlaps boy's sizes 5-6. If a girl is looking for a basketball shoe and wears a shoe smaller than 6, she must purchase one of the male style basketball shoes at issue. Moreover, if a women size 6 or larger does not like the style available or its fit and she wants a basketball shoe, she will purchase one of the men's style basketball shoes in a smaller size. We believe that a good case for men, youths and boys footwear exists in the situation where an equal number of styles of a particular type of footwear, i.e. basketball, for men and women is available. This is not FILA's situation.

The most persuasive evidence is the affidavit stating that the footwear at issue was made on male lasts. An analysis of the relevancy of footwear lasts is found in A. Zerkowitz & Co., Inc. v. United States, 54 Cust. Ct. 151, C.D. 2525 (1965), which held that sneakers were presumed to be unisex unless there was substantial evidence to the contrary. In discussing footwear lasts, the Customs Court stated:

...footwear, even if made on male lasts, might be used indifferently by males and females, was left quite unprovided for. In common speech, there is no ambiguity about a reference to a man's hat or a women's underwear, but with respect to sneakers the case is different.

It is not shown that consumers of sneakers know anything about lasts. It may be, as one witness said, if a woman wears a sneaker made on a male last, she is not wearing a fitted shoe. But does she know this?...The evidence shows a woman wearing a sneaker made with a male last might have to take a half size smaller than she was used to, say 6 1/2 instead of 7, but most retail buyers of footwear try it on anyway, as they have learned to pay little regard to the maker's alleged sizes, and the trade agrees with the consumer in wanting shoes to be selected by actual trial. Indeed, retail sellers frequently conceal the sizes.

With regard to the relevancy of footwear lasts, the Customs Court concluded that "...even if plaintiff had established beyond doubt that the imports herein were produced on male lasts, this would not be, we now hold, conclusive." Based on the finding in Zerkowitz, we do not find the affidavit stating that the footwear at issue was made on male lasts conclusive evidence that the footwear is for "men, youths and boys."

Additionally, counsel claims that the shoes are marketed in boy's sizes and that one of the catalogs in which some of the shoes are depicted pictures a boy. We note that as counsel stated, the 1993 catalog pictures the 3B45 and 3B51 basketball shoes under the page labeled boys with an androgenous pictures which appears represents a running male figure. However, the 1992 catalog depicts the 3B36 style shoe as the "FX-200 HIGH-YOUTH'S" footwear under category entitled "BASKETBALL." However, neither the 1992 or 1993 catalogs submitted depicted the 5B45 women's basketball shoe for a comparison in marketing and advertising techniques.

Based on the information submitted, we are of the opinion that the "M" Squad Hi-Cut and "M" Squad Low-Cut, styles 3B36, 3B45 and 3B51 which are all within the U.S. male size range of 1-6, do not meet the definition of "footwear for men, youths and boys" in Additional U.S. Note 1(b), Chapter 64, HTSUS, as the footwear at issue is commonly worn by both sexes.

HOLDING:

The "M" Squad Hi-Cut and "M" Squad Low-Cut, styles 3B36 (1992 year model), 3B45 and 3B51 (both 1993 year models) which are all within the U.S. male size range of 1-6 are classified under subheading 6403.91.90, HTSUS, as "...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...", depending upon whether the footwear covers the ankle.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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