[Federal Register Volume 67, Number 72 (Monday, April 15, 2002)]
[Notices]
[Pages 18303-18304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8987]


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DEPARTMENT OF THE TREASURY

Customs Service


Standards for Tariff Classification of Unisex Footwear

AGENCY: United States Customs Service, Department of the Treasury.

ACTION: General notice; solicitation of comments.

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SUMMARY: This document invites the public to submit comments to Customs 
regarding what standards Customs should use in determining what 
constitutes ``unisex'' footwear for tariff classification purposes. 
Comments are invited on the appropriateness of specific standards 
suggested by a footwear trade association and on the extent to which 
any standards that Customs has followed in the past should be retained, 
and suggestions for appropriate alternative standards are also invited. 
After a review of the submitted comments, Customs will attempt to 
formulate specific proposed standards for further public comment prior 
to adoption of a final interpretive rule in this area.

DATES: Comments must be submitted by June 14, 2002.

ADDRESSES: Written comments may be addressed to, and inspected at, the 
Regulations Branch, U.S. Customs Service, 1300 Pennsylvania Avenue, 
NW., 3rd Floor, Washington, DC 20229.

FOR FURTHER INFORMATION CONTACT: Greg Deutsch, Textile Branch, Office 
of Regulations and Rulings (202-927-2380).

SUPPLEMENTARY INFORMATION:

Background

    Chapter 64 of the Harmonized Tariff Schedule of the United States 
(HTSUS) covers articles of footwear and footwear uppers and other parts 
of footwear. Within Chapter 64, heading 6403 covers ``[f]ootwear with 
outer soles of rubber, plastics, leather or composition leather and 
uppers of leather.'' Under heading 6403, subheading 6403.99.60, 
specifically covers ``other'' footwear ``[f]or men, youths and boys'' 
and the two following subheadings (6403.99.75 and 6403.99.90) cover 
``other'' footwear ``[f]or other persons.'' Additional U.S. Note 1(b) 
to Chapter 64, HTSUS, provides as follows:
    (a) 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.
    Nearly all types of footwear may be, and in fact are, worn by both 
sexes. Moreover, many types of shoes in male sizes feature no physical 
characteristics which distinguish the footwear as being exclusively for 
males. While Customs is often required to determine whether footwear in 
sizes for males is ``commonly worn by both sexes'' within the meaning 
of Additional U.S. Note 1(b) to Chapter 64, HTSUS, and thus is excluded 
from classification as ``for men, youths and boys'' under subheading 
6403.99.60, HTSUS (and consequently must be classified as ``for other 
persons'' under subheading 6403.99.75 or subheading 6403.99.90, HTSUS), 
the standards for making that determination have been developed and 
applied by Customs on an ad hoc, case-by-case, basis. This approach to 
the ``unisex'' footwear issue, while effective in individual cases, has 
provided only limited guidance to the importing community and to 
Customs officers as regards other prospective or current import 
transactions that present different factual patterns involving that 
issue.
    In a letter dated September 17, 1999, a request was made on behalf 
of the Footwear Distributors and Retailers of America (FDRA) that 
Customs Headquarters issue a policy memorandum or other decision to 
clarify the unisex footwear issue. The letter requested that Customs 
(1) set forth criteria for determining whether footwear claimed to be 
``for men, youths and boys'' is ``commonly worn by both sexes'' and 
therefore should be classified as footwear ``for other persons'' and 
(2) ensure the uniform interpretation and application of those criteria 
by Customs field offices. To this end, the letter requested the 
adoption of a unisex footwear policy consisting of five specified 
elements.
    In light of the request on behalf of the FDRA, and based on a 
review of the various criteria Customs has applied in this area as 
reflected in prior rulings and other written decisions, Customs 
believes that the complexity of this matter warrants preliminary public 
comment procedures to assist Customs in developing, for further public 
comment, specific proposals for standards to be applied in resolving 
issues regarding the classification of unisex footwear. To assist the 
public in preparing comments on this matter, the specific FDRA 
proposals and the standards Customs currently applies in this area are 
described below.

The FDRA Proposed Criteria

    The elements of the unisex footwear policy proposed by the FDRA 
consisted of the following:
    1. Footwear in sizes for men, youths and boys should not be 
considered ``commonly worn by both sexes,'' that is, ``unisex,'' if 
that particular type of footwear (for example, tennis shoes) is 
available in women's styles;
    2. Determinations as to whether a type of shoe is ``commonly worn 
by both sexes'' should be based upon use by women or girls of at least 
25 percent, a ratio of at least one female user to every four male 
users;
    3. Footwear for males should be presumed not to be unisex if an 
importer markets a ``comparable'' number of styles for both sexes, and 
a ratio of five to one (male to female styles) should be considered 
``comparable;''
    4. In determining whether women's styles are available, the inquiry 
should focus on the availability of women's styles in the market as a 
whole; and
    5. The fact that a shoe is not marketed to women should be 
considered evidence that it is not ``commonly worn by both sexes.''

The Current Customs Standards

    In determining whether footwear is ``commonly worn by both sexes,'' 
Customs generally considers certain types or categories of footwear to 
be at least susceptible to unisex treatment (that is, to be 
classifiable as footwear ``for other persons'' despite claims that the 
footwear is designed and intended solely ``for men, youths and boys''). 
These types of footwear include hikers, sandals, work boots, cowboy 
boots, combat boots, motorcycle boots, ``athleizure'' shoes, boat 
shoes, and various types within the class described as athletic 
footwear (for example, tennis shoes, training shoes).
    Customs generally considers that a type of footwear is ``commonly 
worn by both sexes'' if the number of styles claimed to be for males in 
an importer's line, when compared to the number of styles in the line 
for females, renders it likely that females will purchase and wear at 
least 5 percent of the styles claimed to be for males (in other words, 
one female user for every twenty male users). Since it is unlikely that 
a distributor or retailer would discourage the sale to females of 
footwear claimed to be for males, Customs would consider that an 
importer of basketball shoes claimed to be for use only by males, who 
imports no basketball shoes claimed to be for use only by females, is 
in fact an importer of basketball shoes

[[Page 18304]]

that potentially could be ``commonly worn by both sexes.''
    Once it is determined that an imported line of footwear potentially 
susceptible to unisex treatment is in fact ``commonly worn by both 
sexes,'' Customs applies unisex treatment to that footwear line only in 
sizes up to and including American men's size 8. This size-limited 
treatment isolates from the full range of imported sizes those footwear 
sizes that are most ``commonly worn by both sexes.''
    Even if a shoe in an imported line claimed to be for males is of a 
type of footwear commonly worn by both sexes (for example, a hiker, 
sandal, work boot, tennis shoe), Customs does not accord unisex 
treatment to the imported line if a ``comparable line'' of styles is 
available to females. The styles of the ``comparable line,'' however, 
should be substantially similar to the styles for males in general 
appearance, value, marketing, activity for which designed, and 
component material (including percentage) breakdowns.
    With regard to a ratio of male styles to female styles at which a 
``comparable line'' may be found to exist, in Headquarters Ruling 
Letter (HQ) 955960, issued August 19, 1994, Customs stated that ``* * * 
a good case * * * exists [for that finding] in the situation where an 
equal number of styles of a particular type of footwear * * * for men 
and women is available.'' In other words, a one to one ratio clearly 
establishes a ``good case'' by which an importer may avoid unisex 
treatment of footwear claimed to be for males.
    For purposes of establishing the existence of a ``comparable line'' 
for females, Customs confines its determination to the imported 
footwear at issue. Customs may take notice of additional styles made 
available by the importer that are not included in a particular entry. 
Customs does not, however, consider the availability of comparable 
styles for females in the U.S. market as a whole in determining what 
constitutes an importer's ``comparable line.''
    Finally, Customs does not consider the fact that a certain shoe is 
not marketed to women to be evidence that the shoe is not ``commonly 
worn by both sexes.'' Customs has no control over decisions regarding 
the marketing of imported footwear, and it is further noted that sales 
to females of footwear claimed to be for males, without the expense of 
marketing, would certainly appear to be profitable and therefore 
probably do occur.

Submission of Comments

    Customs is interested in receiving preliminary comments from the 
public on all aspects of the unisex footwear issue for the purpose of 
assisting Customs in the preparation of specific proposals for further 
public comment, with a view to promulgating, if feasible, a final 
interpretive rule setting forth standards for the tariff classification 
of unisex footwear. Comments are specifically invited on, but need not 
be limited to, the following matters:
    1. Whether specific, mandatory criteria, as opposed to general 
guidelines, should be used by Customs in resolving unisex footwear 
classification issues;
    2. The acceptability of the five FDRA proposals both individually 
and as a group;
    3. The extent to which any of the positions of Customs described 
above should be retained, revised or discarded;
    4. Whether any general standards or specific criteria other than 
those already mentioned in this document should be adopted;
    5. Whether the terms ``category,'' ``type,'' ``style,'' and 
``line'' (or ``imported line'') should be specifically defined with 
reference to footwear for purposes of their use in developing unisex 
footwear classification standards; and
    6. Whether application of unisex footwear classification standards 
should be limited to the subheadings under heading 6403, HTSUS, 
mentioned above or should also apply for purposes of classification 
under other HTSUS headings (for example, under heading 6402, for 
purposes of distinguishing at the statistical subheading level between 
footwear ``for men'' and footwear ``for women'' and ``other'' footwear.
    Consideration will be given to any written comments timely 
submitted to Customs. Comments submitted will be available for public 
inspection in accordance with the Freedom of Information Act (5 U.S.C. 
552), Sec. 1.4, Treasury Department Regulations (31 CFR 1.4), and 
Sec. 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular 
business days between the hours of 9 a.m. and 4:30 p.m. at the 
Regulations Branch, Office of Regulations and Rulings, U.S. Customs 
Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC.

    Dated: April 9, 2002.
John Durant,
Director, Commercial Rulings Division.
[FR Doc. 02-8987 Filed 4-12-02; 8:45 am]
BILLING CODE 4820-02-P