CLA-2 CO:R:C:M 950439 KCC
6403.91.90; 6403.99.90
John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4608
RE: Athletic footwear; reconsideration of PC 864030; footwear
for men, youths and boys; Additional U.S. Note 1(b) of
Chapter 64; commonly worn by both sexes; DeVahni
International Inc. v. United States; Mast Industries v.
United States; marketing; style
Dear Mr. Pellegrini:
This is in reference to your letter dated September 27,
1991, on behalf of Genesco Inc., requesting reconsideration of
pre-entry classification ruling (PC) 864030 dated July 17, 1991,
concerning the tariff classification of athletic footwear under
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
PC 864030 classified certain Mitre "Street Hot" footwear
under subheading 6403.91.90, HTSUS, as "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, as "...Other
footwear...Other...Other... Other...For other persons...Valued
over $2.50/pair." The specific footwear at issue is Mitre's
"Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness, and
X.T. Power. You state that these styles are boys' athletic
footwear in youth sizes 8 1/2-13 1/2 and youth/adult sizes 1-8.
You contend that the athletic footwear should be classified
as footwear for men, youths and boys under subheading
6403.91.60, HTSUS, as "...Other footwear...Covering the
ankle...Other...For men, youths and boys...." or 6403.99.60,
HTSUS, as "...Other footwear...Other...Other...Other...For men,
youths and boys....," depending upon whether or not the footwear
covers the ankle.
ISSUE:
Whether the subject styles of athletic 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 the terms of the headings and
any relative section or chapter notes...."
Footwear is properly classified within Chapter 64, making
the Chapter 64 notes applicable to this classification.
Additional U.S. Note 1(b) to Chapter 64 states:
[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.
The Mitre footwear which is smaller than youths' size 11-1/2
is properly classified under subheading 6403.91.90 or
6403.99.90, HTSUS, depending upon whether or not the footwear
covers the ankle. This classification is proper because the
footwear does not meet qualifications found in Additional U.S.
Note 1(b) to Chapter 64. Specifically, the footwear must be
youths' size 11-1/2 and larger.
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 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 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.
An examination of the individual styles of footwear at
issue shows that the Mitre "Street Hot" styles, Bandit, Blast,
Wicked, Bullet, Badness and X.T. Power youths' size 11-1/2 and
larger are not commonly worn by both sexes. The styles, their
colors and sizing, as well as the marketing of the shoes
establishes the fact that they are footwear for boys. The manner
in which an importer markets its products is a very strong
indication of how the product will be used. Mast Industries v.
United States, 9 CIT 549 (1985), aff'd, 786 F.2d 1144 (Fed. Cir.
1986).
The brochures submitted exhibit that Genesco markets the
footwear to boys. The brochures display the boys' styles
separately from those shoes designed and marketed for and
commonly worn by girls. Additionally, the girls' shoe sizes are
youth 8-1/2 to 3 and adult 5-10. The style names of the girls'
shoes are Sizzle, Sassy, Jazz, Blaze and Precious. The boys'
shoes do not use the pastel pink color as a trim or for the
laces, while the girls' athletic shoes invariably contain pastel
color trim or laces. The boys' athletic shoes are designed in
bold colors such as neon green, purple, blue, red, and black
which contrast with the predominately pastel pink and lilac of
the girls' shoes. When bolder colors such as emerald are used in
the girls' shoes, shades of pink or lilac are used in combination
with the bolder colors to distinguish the shoes as girls' shoes.
We recognize that young females may wear the footwear
designed and marketed to the young males. However, the importer
has overcome the presumption that it's footwear is of the type
"commonly worn by both sexes". Therefore, the Mitre "Street Hot"
footwear youths' size 11-1/2 and larger at issue are properly
classified as footwear for men, youths and boys in subheadings
6403.91.60 or 6403.99.60, HTSUS, depending upon whether or not
the shoe covers the ankle.
HOLDING:
The Mitre "Street Hot" footwear which is smaller than
youths' size 11-1/2 is properly classified under subheading
6403.91.90 and 6403.99.90, HTSUS, depending upon whether or not
the footwear covers the ankle.
The Mitre "Street Hot" footwear youths' size 11-1/2 and
larger at issue are properly classified as footwear for men,
youths and boys in subheadings 6403.91.60 or 6403.99.60, HTSUS,
depending upon whether or not the footwear covers the ankle.
Pre-entry classification ruling 864030 is modified according
to the terms of this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division