HQ 951361: Athletic footwear; Footwear for men, youths and boys; Additional U.S. Note 1(b) to Chapter 64; Commonly worn by both sexes; HRL 950439 reconsidered and affirmed.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951361
                          July 24 1992

CLA-2  CO:R:C:M  951361 DFC

CATEGORY:  Classification

TARIFF NO.:  6403.91.60;  6403.99.60

Area Director of Customs
New York Seaport
6 World Trade Center
New York, New York  10048

RE:  Athletic footwear;  Footwear for men, youths and boys;
     Additional U.S. Note 1(b) to Chapter 64;  Commonly worn by
     both sexes;  HRL 950439 reconsidered and affirmed.

Dear Sir:

     In a memorandum dated March 16, 1992, you asked that this
office reconsider the result reached in Headquarters Ruling
Letter (HRL) 950439 dated March 16, 1992, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain athletic footwear.

FACTS:

     The footwear which was the subject of HRL 950439 was Mitre's
"Street Hot" styles, Bandit, Blast, Wicked, Bullet, Badness and
X.T. Power.  In that ruling Customs concluded that these styles
in youth's sizes 11-1/2 and larger are not commonly worn by both
sexes.  Consequently, these styles were classified as leather
footwear for men, youths and boys in subheadings 6403.91.60 or
6403.99.60 HTSUS, depending upon whether or not the shoe covered
the ankle.

     You maintain that the "Street Hot" styles in youth' sizes
11-1/2 and larger are properly classifiable 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 footwear with outer soles
of rubber, plastics, leather or composition leather and uppers of
leather, other, other, for other persons, valued over $2.50 per
pair, depending upon whether or not the footwear covers the
ankle.

ISSUE:

     Are the Mitre "Street Hot" styles commonly worn by both
sexes?

                               -2-

LAW AND ANALYSIS:

     Briefly, the rationale in HRL 950439 for concluding that the
styles in issue are not commonly worn by both sexes was that
these styles by virtue of their colors and sizing as well as
their marketing establishes that they are in fact footwear for
boys.

     You argue that HRL 950439 reached the wrong result for the
following reasons:

     1.   The fact that boys do not wear girls' colors or style
          names in footwear is irrelevant in unisex decisions.
          Girls can and do wear boys' colors and style names in
          footwear.  If a style is not available in girls'
          sizes, they buy the boys' sizes.  Sales of these shoes
          to girls will not be "uncommon." Girls use of boys'
          shoes make the boys' shoes "unisex" for Customs
          purposes.

     2.   The importer presented absolutely no evidence (as
          Customs understands evidence) that sales to girls are
          "uncommon."  His claim by itself is not evidence.

     3.   "Street Hot" is a term that in today's social context
          is used to market products to boys and girls, men and
          women.

     4.   Although we no longer have the catalog, we recall that
          there were girls' pictures with the boys' styles,
          meaning that the boys' styles are marketed to boys and
          girls.  The lack of boys' pictures with the girls'
          styles is, as stated in 1 (above), totally irrelevant.

     5.   HRL 950439 has created a new unisex definition which is
          quite different from the old one on which Headquarters
          has ruled on a number of times.  Headquarters has
          ruled that only youths' sizes smaller than 11-1/2 are
          unisex.  Its  previous position was that all shoes
          smaller than men's 8-1/2 were unisex.

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



                               -3-

     Additional U.S. Note 1(b) to Chapter 64, which is relevant
here, reads as follows:

     1.   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.

     We agree with your first three contentions except for the
unqualified statement that "[g]irls use of boys' shoes make the
boys' shoes 'unisex' for Customs purposes."

     With respect to your fourth contention, we note that the
catalogs labelled "B" and "C" portray both boys and girls on
their front covers.  The unlabelled catalog portrays a boy on
its front cover.  At first glance one would conclude that the
shoes advertised therein including those in issue would be
marketed to both boys and girls.  However, while the covers
portray both boys and girls, the advertising material on the
remaining pages clearly delineates between girls' and boys'
styles of footwear.  In fact, the boys portrayed on the front
covers of the brochures are wearing boys' style shoes while the
girls are wearing girls' style shoes.  Consequently, we were
justified in HRL 950439 in concluding that Genesco does market
the styles in issue as youths and boys footwear.

                               -4-

     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.  We have conducted an
informal survey of stores which sell athletic footwear in the
Washington D.C. area.  The consensus of the salespeople
interviewed was that young females do in fact wear shoes which
are designed and marketed to young males.  However, there was
almost universal agreement that although sales of youths and boys
shoes to females are not recorded as such, the amount of such
sales are estimated not to approach 5% of total sales in the
particular size ranges involved.

     With respect to your fifth contention, it is not our
intention to completely abolish the position that all shoes
smaller than men's size 8-1/2 are unisex.  Information before
this office is that cleated sports footwear in men's sizes 8-1/2
and lower are commonly worn by young females.  With respect to
particular non-cleated athletic shoes in youths' sizes 11-1/2 and
larger, we would still regard them as unisex, if it could be
reasonably estimated that at least 5% of total sales were to
females.

HOLDING:

     Mitre's "Street Hot" styles, Bandit, Blast, Wicked, Bullet,
Badness and X.T. Power are not commonly worn by both sexes.
Therefore, these styles are classifiable as footwear for men,
youths and boys in subheadings 6403.91.60 or 6403.99.60, HTSUS,
depending upon whether or not they cover the ankle.

     HRL 950439 is affirmed.

                                   Sincerely,


                                   John Durant, Director
                                   Commercial Rulings Division



6cc AD NY Seaport
1cc Eric Francke NY Seaport
1cc John Durant
1cc K. Hallborg  Buffalo