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HQ 964514




August 8, 2002

CLA-2 RR:CR:TE 964514 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: Chapter 64, HTSUSA

Ms. Alice M. Rigdon
Port Director
United States Customs Service
555 Battery Street
San Francisco, California 94111

RE: Internal Advice Request No. 00/20; Classification of Unisex Footwear that Utilizes European Sizing, NY File No. G80942

Dear Ms. Rigdon:

This letter is in reply to your memorandum, dated July 28, 2000, regarding Request for Internal Advice No. 00/20, dated July 6, 2000, filed by Sandler, Travis & Rosenberg and Glad & Ferguson, P.C., on behalf of Specialized Bicycle Components, Inc., concerning the size cutoff for classification of unisex footwear in which only the European size is provided.

FACTS:

This issue arose as a result of an entry of footwear on January 7, 2000, entered through the Port of San Francisco, California. Specialized Bicycle Components, Inc. (SBC) had classified unisex shoes as those shoes up to and including size 8.0 American and men’s shoes as those shoes sized 8.5 American and above. According to the “Shoe Sizing Chart” used by SBC, unisex shoes up to and including 8.0 American correspond to a European size 40 and below and men’s shoes sized 8.5 American and above correspond to a European 41 and above. A copy of SBC’s sizing chart was submitted with their internal advice request.

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Therefore, all bicycle shoes sized as European 41 and above were identified by SBC as men’s cycling shoes and were classified under subheadings 6402.19.9030, HTSUSA, dutiable at 9 percent ad valorem or 6403.19.4090, HTSUSA, dutiable at 4.3 percent ad valorem, as appropriate; all shoes sized as European 40 and below were identified as unisex cycling shoes and were classified under either subheadings 6402.19.9060, HTSUSA, dutiable at 9 percent ad valorem, or 6403.19.7060, HTSUSA, dutiable at a free rate of duty, as appropriate. (We note that other classification issues also arose regarding the subject entry, but those issues are not in question here.)

On May 23, 2000, SBC was advised by the Port of San Francisco that Customs was seeking to establish a level of uniformity in the shoe industry due to the several different sizing charts used by manufacturers, suppliers and importers. SBC was advised to adjust their sizing so as to classify all men’s bicycle shoes to include shoes sized European 43 and above and all unisex bicycle shoes to include shoes sized European 42 and below.

ISSUE:

Given that Customs has established the “dividing line” between unisex and men’s footwear as an American size 8.0 and below (unisex) and an American size 8.5 and above (men’s), what will be the dividing line when the footwear and/or shoebox is marked only with the European size and what will be the effect of differing European size charts?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

We first note that, where footwear is specifically designed for men, and worn primarily by men, a size standard is set out in Chapter 64, Statistical Note 1(b), HTSUSA, as follows:

(b) The term “footwear for men” covers footwear of American men’s size 6 and larger for males, and does not include footwear commonly worn by both sexes...

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However, where footwear is of a type commonly worn by both sexes, and no indication is provided that comparable styles are offered for women, Customs has determined, and consistently ruled, that such shoes are considered “unisex” in sizes up to and including American men’s size 8. See New York Ruling Letter (NY) H87291, dated February 12, 2002. See also, NY E83468 (July 8, 1999) and NY E83467(July 8, 1999).

Ideally, footwear imported into, and for consumption in, the United States should be marked with U.S. sizing, but there is currently no law or regulation requiring such marking. Some importers include both U.S. and European sizes on their footwear or shoebox. (European sizes are based on a different scale than U.S. sizes.) Regarding entered merchandise for which both sizes are provided, Customs typically has not questioned the European size marking, and has classified the footwear according to the corresponding U.S. size provided.

Where footwear and/or the packaging thereof is only marked with a European size, Customs policy has been to utilize the European size that is equivalent to, or corresponds to, the U.S. men’s size 8 as the unisex threshold for classification purposes. The problem arises when different sizing charts are used by different manufacturers. To most manufacturers, the U.S. men’s size 8 corresponds to a European size 42; in those circumstances, footwear of European size 42 and below would be classified as unisex footwear (assuming it is footwear of a kind commonly worn by both sexes). Some manufacturers, such as SBC, use different sizing charts with the result that different European sizes correspond to the American sizes. In those instances it is difficult for Customs to determine whether the footwear is being correctly classified as unisex or men’s footwear.

Therefore, in order to assist Customs and importers in the classification of footwear, and to improve the consistency of such classification, this decision provides for a European size dividing line to determine whether certain footwear should be classified as men’s footwear or as unisex (or “other”) footwear. In providing such a dividing line, it is reasonable that the European size 42, the size that most commonly corresponds to the standard cutoff American size 8, should be utilized. It is also reasonable that this standard only apply in those instances in which the manufacturer has not marked the footwear with the corresponding American size as set out in its own sizing charts.

HOLDING:

It is our determination that all footwear of a kind normally worn by both sexes, when marked only with the European size, shall be classified in the

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appropriate subheading of Chapter 64 for unisex footwear of that type, if the European size provided is size 42 or below. If the European size is 43 or above, the footwear should be classified in the appropriate subheading of Chapter 64 (of the particular footwear that is being entered) for men’s footwear.

If the footwear is marked with the corresponding American size, the marked American size will be used to determine the proper classification of the footwear (assuming it is reasonable) even if, according to the manufacturer’s sizing chart, American size 8 is not equivalent to European size 42.

This holding will apply to all styles of footwear.

You are to mail this decision to the internal advice applicant 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, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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