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HQ 957606




August 31, 1995

CLA-2 R:C:M 957606 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.91.90; 6403.99.90

Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-Seven Broad Street
New York, N.Y. 10004

RE: Footwear, basketball; Unisex; Commonly worn by both sexes; Mens, youths and boys; Additional U.S. Note l(b) to Chapter 64, HTSUS; DeVahni International Inc. v. U.S.; Rico Import Company v. U.S.; A. Zerkowitz & Co., v. U.S.; HRL 955960 affirmed

Dear Ms. Cumins:

In a letter dated February 9, 1995, on behalf of FILA Footwear U.S.A. Inc. (FILA), you requested reconsideration of Headquarters Ruling letter (HRL) 955960, dated August 19, 1994, issued as IA 5/94 to the Area Director J.F.K. Airport. That ruling concerned the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain basketball shoes.

FACTS:

The footwear involved is FILA's "M" Squad Hi-Cut and "M" Squad Low-Cut basketball shoes, styles 3B36 (1992 year model), 3B45 and 3B51 (both 1993 models) which are all within the U.S. male size range of 1-6.

In HRL 955960, Customs determined that the subject footwear does not meet the definition of "footwear for men, youths and boys" in additional U.S. Note l(b) to Chapter 64, HTSUS, because it is commonly worn by both sexes. Therefore, it is classifiable under subheading 6403.91.90, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, covering the ankle, other, for other persons or under subheading 6403.99.90, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, other, other, for other persons, valued over $2.50/pair.

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You state that the classification set forth in HRL 955960 is in error because it disregards the fact that the subject shoes are made using male lasts. Further, it asserts an overbroad basis for a tariff provision and it fails to substantiate that 5% or more of the subject shoes are worn by girls.

Therefore, it is your position that the shoes in issue are properly classifiable under subheading 6403.91.60, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather, or composition leather, other footwear, covering the ankle, other, for men, youths and boys or under subheading 6403.99.60, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather, or composition leather, other footwear, other, other, other, for men, youths and boys.

ISSUE:

Whether the subject basketball shoes are for men, youths and boys within the purview of Additional U.S. Note l(b) to Chapter 64, HTSUS.

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]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Additiona l U.S. Note 1 (b) to Chapter 64, 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.

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 Websters 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.

Your first claim is that the FILA "M"" Squad Hi-Cut and FILA "M" Squad Low Cut basketball shoes should be classified as boys' footwear because they are designed using male lasts. Specifically, the basketball shoes in issue are made with male lasts tailored to conform to the shape of boy's feet. Use of male lasts renders these shoes inappropriate for use by girls. Moreover, girls would cause serious harm to their feet if they were to routinely wear the FILA 3B36, 3B45 and 3B51 boys' basketball shoes. See affidavit submitted by footwear designer, Rui Parracho in support of FILA's position.

The case of A. Zerkowitz & Co. Inc. v. United States, 54 Cust. Ct. 151, C.D. 2525 (1965) was cited in HRL 955960 by Customs in support of its position that the fact that the footwear in issue was made on male lasts is inclusive evidence that the footwear is for "men, youths and boys." You assert that this case is thirty years old and is distinguishable from the classification issue presented by your client. You note that HRL 955960 failed to cite the following dicta from the Zerkowitz case:

Apart from size, differences between male and female lasts do not reflect differences in natural foot contour . . . 54 Cust. Ct. At 160. (Emphasis added).

You assert that while the above may have been the case in 1965, Mr. Parracho's affidavit clearly shows that male and female lasts are constructed differently today. Currently, male and female lasts reflect differences in natural foot contours. Certainly, Customs is aware that the present-day consumer is more knowledgeable of the potentially harmful effect of using improperly fitted shoes for playing basketball than was the 1965 consumer.

We are not persuaded that because male and female lasts reflect differences in natural foot contours, that females would not wear a shoe made with a male last. The court in Zerkowitz made the following relevant comment:

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 reqard to the maker's alleged sizes, and the trade agrees with the consumer in wanting shoes toe selected by actual trial. Indeed, retail sellers frequently conceal the sizes. 54 Cust. Ct. at 160.

There are so many variations in female foot sizes that it is probable a good number of females would be able to wear shoes made on a male last without damaging their feet.

Your second claim is that HRL 955960 asserts an overbroad basis for a tariff provision. You state that the U.S. Court of Appeals for the Federal Circuit, in Rico Import Company v. United States, Court No. 93-1321, expressly prohibits an overbroad basis for a tariff. The Rico Court stated that "It]he assertion of Customs that the reeds even as imported might be split and would then be suitable for plaiting, strikes us an overbroad bases for a tariff. 'The dutiable classification of articles imported must be ascertained by an examination of the imported article itself, in the condition in which it was imported.' Worthinqton v. Robbins, 139 U.S. 337, 341 (1891)."

You maintain that like Rico, the assertion that the FILA basketball shoes may be worn by girls is an overbroad basis for a tariff provision. Further, Customs cannot hinder classification of the basketball shoes in issue on the basis that FILA does not produce a girls' basketball shoe. You submit that this reasoning contradicts Rico because it goes beyond consideration of the' imported article itself, and searches for the existence of articles unrelated to those items under consideration. Also, you suggest that under the rationale offered by Customs in HRL 955960, any shoe which might be worn by a girl may not be classifiable as men's, youths' and boys' footwear.

The argument that Customs asserts an overbroad basis for a tariff provision by classifying these shoes as "unisex " rather than for men, youths and boys is incorrect. Unlike the reeds in the Rico case which were used solely for the production of reeds for musical instruments, the subject basketball shoes are of a type of shoes that are worn by both sexes. These shoes have no distinguishing feature which would identify them as for males only, other than that they are made on male lasts; a factor of which the consumer would be unaware. It appears that you are drawing a restrictive base for a tariff provision by asserting

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that these shoes are only for males.

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. See HRL 951361 dated July 24, 1992. Your third claim is that Customs has failed to establish that 5% or more of the subject FILA basketball shoes are commonly worn by girls. In HRL 955960 Customs took the position that females purchase 5% or more of the footwear in issue. That conclusion was based on an informal survey of the major retailers of athletic and other shoes in New York and the administrative staff members of a major college women's basketball team.

You point out that even though the retailers surveyed stated that girls buy shoes in children's shoe departments which do not designate between boys' and girls' shoes does not establish that girls will not look for the girls' shoes when shopping in the children's department.

You state that your own informal survey conducted at New York "Payless" and "Fayva" shoe stores established that young girls are more likely to purchase athletic shoes that have feminine cartoon characters, e.g., Barbie and the female Power Rangers.

You have attached a copy of the questions asked during your survey and copies of responses from three identified shoe stores in the Washington, D.C. area. You ask us to note the small percentage of boy's basketball shoes that may be being sold to girls, and the confirmation of our factual contention that girls' shoes fit girls better than boys' shoes.

It is our observation that the result of your survey of three stores in the Washington, D.C. area is inconclusive. We note that one store indicated that "[f]ive percent at the most of the 25 pairs of boy's basketball shoes sold on average were purchased for use by girls." Another store indicated that "[o]f these 120 pairs sold on average per month, less than 10 pairs were purchased for use by girl's." In this instance there is a distinct possibility that more than 5% were sold to females [even six pairs sold to females would equal 5%]. Although, there are no records 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 in issue.

In cases such as this where Customs must determine if footwear is worn by both sexes, we examine the manner of marketing the footwear. Consideration is given to whether the company markets separate footwear for each sex. See e.g., HRL 950439 dated February 19, 1992, affirmed by HRL 951361 dated July
24, 1992.

The assertion that FILA does not produce or import basketball shoes for women or girls indicates that their shoes are "unisex" rather than men's or boy's. In an article published in the New York Times of March 30, 1995, Liz Dolan, VP of marketing at Nike states "[o]ne in three high school girls play sports," and "[b]ut most women basketball players have bought men's shoes believing they're better." This article further states that "[a]ccording to the Athletic Footwear Association, women younger than 18 years old make up 43 percent of all scholastic basketball players." Based on these figures it is inconceivable that a company would exclude themselves from this market and not intend to sell their shoes to women and girls. Consequently, the fact that they do not produce or import a separate line for women and girls only leads one to believe that they can capture this market with "Unisex" models which they state are for men and boys.

In view of the foregoing, it is our 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 l(b), Chapter 64, HTSUS, as the footwear at issue is commonly worn by both sexes.

HOLDING:

The styles in issue are classifiable under subheading 6403.91.90, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, covering the ankle, other, for other persons or under subheading 6403.99.90, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear, other, other, other, for other persons, valued over $2.50/pair, depending upon whether the footwear covers the ankle.

HRL 955960 is affirmed

Sincerely,

John Durant, Director
Commercial Rulings Division

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