United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1998 HQ Rulings > HQ 959749 - HQ 960015 > HQ 959818

Previous Ruling Next Ruling
HQ 959818




April 10, 1997

CLA-2 RR:TC:TE 959818 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.60; 6403.91.90

Steven P. Sonnenberg, Esq.
Sonnenberg & Anderson
200 South Wacker Drive
Chicago, Ill 60606

RE: Request for Modification of NY A86317; footwear; heading 6403; sex of shoe; unisex footwear; Additional U.S. Note 1(b), Chapter 64; Statistical Note 1(a), Chapter 64; work footwear

Dear Mr. Sonnenberg:

This is in reply to your letter of August 27, 1996, on behalf of your client, The Florsheim Shoe Company, regarding New York Ruling Letter (NY) A86317, dated August 6, 1996. Customs issued that ruling to one of your client's vendors regarding the classification of John Deere footwear, style numbers 50480, 50481 and 50490. The John Deere line is a new line of work boots resulting from Florsheim's licensing of the John Deere name.

You disagree with the tariff classification of the footwear in NY A86317. Pursuant to section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)), any ruling letter found to be in error may be modified or revoked upon proper notification to the person to whom it was issued. Because you contest the tariff classification of an existing ruling, we will treat your submission as a request to revoke or modify NY A86317, and not as a separate ruling request.

FACTS:

Classification of the footwear in question under subheading 6403.91 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is uncontested. That provision encompasses other footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather. Your primary contention is that the boots are for men only and are not unisex footwear.

In NY A86317, Customs held that three styles of John Deere boots were unisex footwear. Boots up to and including size 8 were classified under subheading 6403.91.90 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) (footwear for other persons) and boots in men's size 8 1/2 and above were classified in subheading 6403.91.60, HTSUSA (footwear for men, youths and boys).

You submit that the styles in question are men's boots because all of Florsheim's current and prospective lines of merchandise are strictly men's footwear and are targeted and devoted only to a male market. Additionally, none of the styles are designed to be worn by women and are not sized for women. Thus, you argue that the facts stated in NY A86317 are incorrect in that the footwear is not unisex.

In your opinion, all of the footwear in NY A86317 should have been classified under subheading 6403.91.60, HTSUSA (men, youths and boys footwear).

ISSUE:

Whether the subject styles of Florsheim boots are for men, youths and boys, pursuant to Additional U.S. Note 1(b) of Chapter 64, HTSUSA, and Statistical Note 1(b) of Chapter 64, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Footwear is classified under Chapter 64, HTSUSA. Additional U.S. Note 1(b), Chapter 64, HTSUSA, 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).

Moreover, the term "footwear for men" covers "footwear of American men's size six and larger for males, and does not include footwear commonly worn by both sexes." Statistical Note 1(b), Chapter 64.

The boots in question are imported in men's sizes 7 and up. Customs has long held that unisex footwear does not include men's sizes 8 1/2 and above. Legal Determination (LD) 82-0044, dated April 5, 1982. See also, Headquarters Ruling Letter (HQ) 951361, dated July 24, 1992 and HQ 955960, dated August 19, 1994. Thus, unisex classification will only apply in this case to the boots which are American men sizes 7, 7 1/2 and 8.

You cite De Vahni International, Inc. v. United States, 66 Cust. Ct. 239, C.D. 4196 (1971), concerning the classification of two styles of sandals. The sandals were alike in appearance, but the size and shape were different. The male sizes were style 981M, and the female sizes were style 400L. Only the classification of style 981M was in issue. In that case, Plaintiff asserted the same arguments you raise - that the footwear was not commonly worn by both sexes, was designed for men and was sold to men.

In determining whether the style 981M sandals were "not commonly worn by women" the court 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 "exceptional, infrequent, odd, peculiar, rare, singular or unusual."

The court held in De Vahni that the 981M style sandals were men's footwear since they were designed and sold for men [because of the size] and were not worn by women, except in rare instances, i.e., the women's size would not fit.

You also tendered a John Deere brochure which you claim indicates that the footwear is designed "exclusively" for men. You cite the following excerpts from the brochure to support that claim:

Sure it looks like a boot. But there is no denying it's also a piece of equipment. That's because these boots carry the John Deere name.

Why John Deere? For over 150 years, they've been synonymous with heritage, quality and durability.

So if you're looking for a boot that can help get any job done, keep reading.

Whether you're driving a mammoth combine or fixing a flat on your car, these boots take the word "tough" to a new level. Go ahead and drop your favorite wrench on

We do not find any reference or inference in these excerpts that indicate the footwear in question is "exclusively" for men.

Statistical Note 1(a), Chapter 64, states that the expression "work footwear" encompasses specialized footwear for men or for women that:

- has outer soles of rubber or plastics, and

- is of a kind designed for use by persons employed in occupations, such as those related to the agricultural, construction, industrial, public safety and transportation sectors, that are not conducive to the use of casual, dress, or similar lightweight footwear, and

- has special features to protect against hazards in the workplace (e.g., resistance to chemicals, compression, grease, oil penetration, slippage, or static-buildup).

Other excerpts from the submitted brochure referred to the use of the boots for "heavy-duty chores" and as a "boot that works at both sun up and sun down," a "boot that is ideal for the lawn, the garden, and the farm" and for "Hey rain, snow, muck, hail, slop and mud." Thus, the advertising in the Florsheim brochure clearly reflects that the boots are "work footwear."

Women today work in all occupations including those with duties that include activities described in the brochure. Moreover, Statistical Note 1(a) to Chapter 64 makes clear that "work footwear" is intended to be worn by both men and women. As an example, Customs interviewed a representative from The International Brotherhood of Electrical Workers Union who declared that 10 to 12 percent of their members are women. Additionally, a representative of The Utilities Workers of America informed Customs that possibly up to 20 percent of its members are women.

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. In today's workforce, it is likely that 5% or more of work footwear will be sold to females in need of quality work shoes. Thus, we conclude that, unlike the sandals in De Vahni, it would not be uncommon for women to buy the boots in question in sizes up to and including men's size 8, from a Florsheim store or from a store that sells the Florsheim work boots.

NY A86317 is affirmed.

HOLDING:

The John Deere footwear, style numbers 50480, 50481 and 50490, ranging from men's size 8 1/2 and above are classifiable under subheading 6403.91.60 (footwear for men, youths and boys). They are dutiable at the general column rate of duty at 8.5 percent ad valorem. Sizes up to and including size 8 are classifiable under subheading 6403.91.90, HTSUSA (footwear for other persons), and are dutiable at the general column rate of 10 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

Previous Ruling Next Ruling

See also: