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NY G81254




September 14, 2000

CLA-2-64:RR:NC:TA:347 G81254

CATEGORY: CLASSIFICATION

TARIFF NO. 6403.91.60, 6403.91.90

Mr. Michael T. Cone
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue
New York, NY 10167-3397

RE: The tariff classification of footwear made in Taiwan.

Dear Mr. Cone:

In your letter dated August 29, 2000 you requested a classification ruling on behalf of BBC International, Ltd., (BBC). You have resubmitted a sample of a men’s athletic shoe, style TAM93146 with a predominantly leather upper. This shoe was previously ruled upon in PD F89045 dated July 14, 2000. In that ruling, the shoe was determined to be the type of footwear which is commonly worn by both sexes. Prior to issuing a ruling on this shoe, this office contacted the importer by telephone to determine whether a “women’s” version of this type of footwear is available to compliment the “men’s” version. Since this was not the case, the footwear was classified as “unisex” in sizes up to and including American men’s size 8.

Your resubmission of this shoe is predicated upon a telephone conversation with this office where you state that you were advised that in order to overcome the unisex aspect of this ruling, evidence demonstrating that BBC markets athletic footwear for both men and women must be presented. You have submitted various specification sheets relating to athletic shoes to be imported by BBC for the Fall 2000/Spring 2001 seasons. You explain that BBC prefaces their style numbers with a three-letter designation. the first letter signifies the country of origin, the second letter signifies the kind of footwear (i.e. “A” would signify athletic) and the third letter would signify gender (“M” for men, “W” for women). The specification sheets which you have submitted demonstrate that the importer offers 29 styles of leather athletic shoes for women in their Fall 2000/Spring 2001 line compared to 17 styles of leather athletic shoes for men.

The classification of merchandise under the Harmonized Tariff Schedule of the United States, (HTS), is governed by the General Rules of Interpretation, (GRI’s). GRI 1 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, HTS, making the Chapter 64 notes applicable to this classification. Additional U.S. Note 1(b), Chapter 64 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.

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 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 Wangles 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.

While this office is satisfied that BBC offers the class (i.e. athletic) of footwear for both men and women, we are not persuaded by your submission that BBC offers the “type” of footwear represented by style TAM93146 for both men and women. This type of footwear is commonly worn by both sexes and therefore, lacking the presentation of a corresponding style for women, is classified “for other persons” in sizes up to and including American men’s size 8.

The sample submitted with this ruling request is a mid-height athletic shoe. It covers the wearer’s ankle. The applicable subheading for style TAM93146 in sizes up to and including American men’s size 8 will be 6403.91.90, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of predominantly leather, other than sports footwear, covering the ankle, for other persons. The rate of duty will be 10 percent ad valorem. The applicable subheading for style TAM93146 in sizes larger than American men’s size 8 will be 6403.91.60, (HTS) which provides for footwear with outer soles of rubber or plastics and uppers of predominantly leather, other than sports footwear, covering the ankle, for men, youths and boys. The rate of duty will be 8.5 percent ad valorem.

The submitted sample is not marked with the country of origin. Therefore, if imported as is, will not meet the country of origin marking requirements of 19 U.S.C. 1304. Accordingly, the footwear would be considered not legally marked under the provisions of 19 C.F.R. 134.11 which states, "every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article."

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding this ruling, contact National Import Specialist, Richard Foley at (212) 637-7089.

Sincerely,

Robert Swierupski
Director,

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