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