[Federal Register Volume 71, Number 141 (Monday, July 24, 2006)]
[Notices]
[Pages 41822-41825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11679]



[[Page 41822]]

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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

[USCBP-2006-0021]


Standards for Tariff Classification of Unisex Footwear

AGENCY: Customs and Border Protection; Department of Homeland Security.

ACTION: Proposed interpretation; solicitation of comments.

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SUMMARY: This document proposes new criteria to be used by the Bureau 
of Customs and Border Protection (``CBP'') to determine whether 
footwear should be considered to be ``commonly worn by both sexes'' 
(unisex) for tariff classification purposes under the Harmonized Tariff 
Schedule of the United States. The rates of duty applicable to footwear 
``For other persons'' (i.e. ``unisex'') are about 1.5 percent higher 
than the rates of duty applicable to footwear ``For men, youths and 
boys''. CBP is seeking comments from the public on its proposed 
criteria prior to adoption of a final interpretation.

DATES: Comments must be received on or before September 22, 2006.

FOR FURTHER INFORMATION CONTACT: Brian Barulich, Tariff Classification 
and Marking Branch, Office of Regulations and Rulings, (202) 572-8883.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2006-0021.
     Mail: Trade and Commercial Regulations Branch, Office of 
Regulations and Rulings, Bureau of Customs and Border Protection, 1300 
Pennsylvania Avenue, NW., (Mint Annex), Washington, DC 20229.
    Instructions: All submissions received must include the agency name 
and docket number for this document. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received go to http://www.regulations.gov. Submitted comments 
may also be inspected during regular business days between the hours of 
9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Bureau 
of Customs and Border Protection, 799 9th Street, NW., 5th Floor, 
Washington, DC. Arrangements to inspect submitted comments should be 
made in advance by calling Mr. Joseph Clark at (202) 572-8768.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to submit written data, views, or 
arguments on all aspects of the proposed interpretation. CBP also 
invites comments that relate to the economic, environmental, or 
federalism effects that might result from this proposed interpretation. 
Comments that will provide the most assistance to CBP in developing 
these procedures will reference a specific portion of the proposed 
interpretation, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.

Background

    This document sets forth CBP's proposed standards for 
classification of certain footwear as ``unisex''. On April 15, 2002, 
CBP's predecessor, the U.S. Customs Service (hereinafter ``CBP'', for 
clarity and consistency), published in the Federal Register (67 FR 
18303) a general notice to solicit comments concerning alternatives to 
CBP's treatment of footwear deemed to be ``unisex.'' Four comments were 
received in response to that notice. In this document, CBP addresses 
the concerns and suggestions raised in those comments and proposes 
standards for determining whether footwear should be classified as 
unisex footwear. This document solicits further comment on the proposed 
interpretation before a final interpretation is published.

Current Law and Policy

    Chapter 64 of the Harmonized Tariff Schedule of the United States 
(HTSUS) covers footwear, gaiters and the like, and parts of such 
articles. Disparities in the duty rates applicable to some provisions 
under heading 6403 in Chapter 64 are based on the gender of the user. 
Additional U.S. Note 1(b) and Statistical Note 1(b) to Chapter 64, 
HTSUS, provide that footwear ``for men, youths and boys'' covers 
footwear of certain men's and youths'' sizes, but does not cover 
footwear commonly worn by both sexes (i.e., unisex footwear). 
Statistical Note 1(c) to Chapter 64, HTSUS, provides that footwear 
``for women'' covers footwear of certain women's sizes, whether for 
females or of types commonly worn by both sexes (i.e, unisex). 
Elsewhere in the HTSUS (in subheadings 6403.99.75 and 6403.99.90, for 
example), footwear is classified as ``for other persons,'' a definition 
that also includes unisex footwear. The determination of whether 
footwear is classifiable as ``for men, youths and boys'' rather than 
``for women'' or ``for other persons,'' therefore, often rests on 
whether the footwear is truly for men, youths and boys or is, in fact, 
unisex. The rates of duty applicable to footwear ``For other persons'' 
(i.e. ``unisex'') are about 1.5 percent higher than the rates 
applicable to footwear ``For men, youths and boys''. It is noted that 
quota/visa requirements remain inapplicable to footwear.
    Many 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 that distinguish the footwear as being exclusively for 
males. Current CBP standards for making the determination of whether or 
not footwear is unisex have been developed and applied by CBP 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 CBP officers with respect to 
other prospective or current import transactions that present different 
factual patterns involving that issue.
    CBP's current approach to unisex determinations is as follows: CBP 
considers certain types or categories of footwear to at least be 
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 (e.g., tennis 
shoes and training shoes). CBP 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. Once it is determined that an imported line of 
footwear potentially susceptible to unisex treatment is in fact 
``commonly worn by both sexes,'' CBP applies unisex treatment to that

[[Page 41823]]

footwear line only in sizes up to and including American men's size 8.
    However, if a shoe in an imported line claimed to be for males is 
of a type of footwear commonly worn by both sexes, CBP does not accord 
unisex treatment to the imported line if a ``comparable line'' of 
styles is available to females. To be considered a ``comparable line,'' 
CBP requires an equal number of styles of a particular type of footwear 
(i.e., a one-to-one ratio, female-to-male is required). In addition, to 
be considered a ``comparable line,'' female styles must be 
substantially similar to the styles for males in general appearance, 
value, marketing, activity for which designed, and component material 
(including percentage) breakdowns.
    For purposes of establishing the existence of a ``comparable line'' 
for females, CBP confines its determination to the imported footwear at 
issue. CBP may take notice of additional styles made available by the 
importer that are not included in a particular entry. CBP does not, 
however, consider the availability of comparable styles for females in 
the U.S. market as a whole. Finally, CBP 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.''

Request From Public to Provide Enhanced Guidance

    In a letter dated September 17, 1999, the importing public, 
represented by the Footwear Distributors and Retailers of America 
(``FDRA''), requested that CBP take steps to provide enhanced guidance 
in determinations concerning ``unisex'' issues. The FDRA requested that 
CBP (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.

Preliminary Notice

    After receiving the FDRA letter, CBP published a document in the 
Federal Register (67 FR 18303) on April 15, 2002. In that document, CBP 
set forth a more in depth analysis of its current procedures, and also 
set forth FDRA's proposed criteria. CBP solicited comments on the 
appropriateness of the specific standards suggested by FDRA and on the 
extent to which any standards followed by CBP in the past should be 
retained. Suggestions for alternative appropriate standards were also 
invited.

Summary of Comments

    All four of the commenters who responded to the general notice 
provided a range of specific comments on various aspects of the 
``unisex'' footwear issue. These comments are discussed below.
    Comment: All of the commenters take issue with the fact that CBP 
confines its ``unisex'' footwear determinations in every case to the 
footwear of a particular importer's line. They argue that CBP should 
consider the availability of comparable styles for females in the U.S. 
retail market to constitute, or substitute for, any part of the 
importer's ``comparable line'' for females. The commenters note that 
this narrow focus leads to inaccurate findings that an importer's 
footwear for males is ``commonly worn by both sexes'' (i.e., unisex). 
The commenters point out that the precise question raised by Additional 
U.S. Note 1(b) to chapter 64, is whether footwear is ``commonly worn by 
both sexes.'' They maintain that CBP improperly applies this statutory 
standard of ``use'' through presumptions, essentially basing factual 
determinations on: (1) The size and type of shoe; and (2) the number of 
various styles (male and/or female) included in an importer's line of 
merchandise.
    Two of the commenters concede that in most cases, confining the 
inquiry to the importer's line of footwear provides a reliable estimate 
as to whether footwear for males is commonly worn by both sexes. This 
is particularly true when the importer is a ``branded distributor'' of 
the footwear it imports, as opposed to a ``non-branded importer,'' who 
provides footwear to a retailer under the retailer's brand or a generic 
brand. However, the commenters assert that, in the case of the non-
branded importer, confining the ``unisex'' determination to the 
importer's line of footwear not only provides an unreliable estimate as 
to whether footwear for males is commonly worn by both sexes, but also 
results in the misclassification of footwear.
    CBP Response: CBP agrees and, in an effort to bring more 
consistency to this area, is proposing to consider evidence from an 
importer of men's footwear demonstrating that it imports the same shoe 
for women and girls or that the same shoe for women and girls is 
imported by a separate importer and is available in the U.S. 
marketplace.
    Comment: All of the commenters stress that, in certain cases, 
importers must be allowed the opportunity to present evidence to 
establish that their footwear for males is not commonly worn by both 
sexes. One commenter cites to Treasury Decision (T.D.) 93-88, dated 
October 25, 1993, as an example of CBP's use of presumption in applying 
the above statutory standard. In T.D. 93-88, certain footwear 
definitions were provided for use as guidelines by the importing 
community. Under the term ``unisex,'' it stated, in part, that 
``[u]nless there is evidence to the contrary, assume all athletic shoes 
for youths (approximately sizes 11.5 to 2) and men, sizes 8 and 
smaller, are unisex except shoes for football, boxing or wrestling.'' 
In addition, T.D. 93-88 indicates that CBP will not assume that certain 
shoes are unisex if there is ``evidence to the contrary.'' The 
commenter complains that CBP provides very little guidance to the 
importing community as to the type or amount of evidence needed to 
refute unreasonable presumptions.
    CBP Response: CBP agrees and is proposing to consider evidence of 
marketing provided by importers and others, and the marking of gender 
and size. By considering this evidence, CBP hopes to limit 
determinations that are based solely on presumption as to how footwear 
will be used.
    Comment: One commenter notes that CBP has previously ascertained 
the availability of women's styles and sizes in the retail market, to 
determine whether shoes claimed to be ``for men, youths and boys'' were 
classifiable as footwear ``for other persons.'' The commenter asserts 
that in Headquarters Ruling Letter (HQ) 955960, issued August 19, 1994, 
CBP determined that certain basketball shoes were classified as unisex 
because ``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.'' The commenter opines that such an approach, based 
on available evidence, is sensible and correct. The commenter further 
notes that in HQ 952097 (issued September 15, 1992), CBP concluded that 
certain soccer shoes were classified as unisex based on informal 
interviews with retailers.
    CBP Response: As indicated above, CBP agrees with the commenter and 
is proposing to consider evidence of marketing provided by importers 
and others, as well as the marking of gender and size.
    Comment: Another commenter suggests that, regardless of the type of 
evidence CBP decides to require or accept, the agency should not have 
to perform its own market research, as it apparently did before issuing 
HQ 962742, dated February 28, 2001. This

[[Page 41824]]

ruling concerned the extent of use by men of certain types of western/
cowboy hats. To determine such use, CBP viewed numerous magazines, 
contacted several equine sports associations that regulate equine 
sports events for western style riding, and visited eight western 
stores. The commenter asserts that the judicial decisions and statutory 
standards pertinent to unisex footwear do not require the amount of 
extraneous evidence and number of subjective determinations inherent in 
standards utilized by CBP and in those initially proposed by the FDRA. 
The commenter maintains that reliance on the general appearance of 
footwear is extremely subjective, that shoes of identical construction 
often are not sold at similar prices and that susceptibility to use, 
likelihood of use, and availability of ``comparable'' styles in a 
retail market of ever-changing styles, tastes, etc., rarely shed light 
on the question of what is ``commonly worn by both sexes.'' However, 
the commenter also notes that in Mast Industries, Inc. v. United 
States, 9 C.I.T. 549 (1985), aff'd 786 F.2d 1144 (Fed. Cir. 1986), the 
court emphasized the primary importance of the characteristics of the 
imported merchandise, observing that ``[t]he former Court of Customs 
and Patent Appeals held that the merchandise itself may be strong 
evidence of use.''
    CBP Response: CBP agrees with the court in Mast. Again, as 
indicated above, CBP is proposing to consider evidence of marketing 
provided by importers and others, and marking of gender and size in 
order to limit determinations that are based solely on presumption. CBP 
proposes to initially rely on evidence provided by the importer and 
others. However, CBP does not propose to limit its ability to perform 
market research in those cases where it finds such research necessary.
    Comment: One commenter, noting the judicial guidance of Mast 
discussed above, proposes that CBP base its unisex determinations on 
examination of: (1) The imported merchandise itself; and (2) the 
documents presented at the time the entry summary, or its equivalent, 
is filed. The commenter asserts that men's/boys' shoes are usually made 
on men's/boys' lasts (i.e., a block or form shaped like a human foot 
and used in making shoes) and are usually described as men's/boys' 
shoes on purchase orders, invoices and footwear detail sheets. The 
commenter suggests that, in order to eliminate any gender ambiguity, 
shoes for males could be labeled or marked to identify the gender for 
which the shoes have been designed, and to whom they will be marketed. 
CBP could require that such labeling or marking be visible in or on the 
shoe, the shoebox, or both. As an example, the commenter proposes 
requiring that a sewn-in label or hang tag state ``boys size 6'' 
instead of only ``size 6,'' in order to clarify that the shoe is a 
boy's shoe and that the importer intends that it be sold for use by 
boys.
    The commenter stresses that footwear described as men's/boys' shoes 
on the import documentation and marked as such, should be presumed to 
be marketed for sale to men and boys and should not be considered 
unisex. The commenter also states that shoes designed for males are 
usually merchandised separately from shoes for females, and even if 
sold in the same department of the same retail store, the shoes for 
each gender are usually segregated in separate areas, shelves or racks. 
The commenter contends that this aspect of marketing is a reflection of 
shoe design, because shoes for males are intended to be sold to males.
    The same commenter recommends the following ``bright-line test'' to 
establish what is commonly worn by both sexes. The following criteria 
should be met in order for CBP to presume that imported footwear is 
unisex. The footwear should be: (a) American men's sizes 8 or under; 
(b) a type that is susceptible to use by both sexes; (c) not described 
in import documents as footwear for men, youths or boys; and (d) not 
made on lasts designed for American males; or not marked, labeled, or 
sold as footwear for men, youths or boys by sizing or otherwise. The 
commenter also maintains, however, that an importer should be allowed 
to rebut CBP's presumption that the footwear is unisex, by establishing 
the existence of at least one comparable female shoe style, in either 
the importer's line or in the U.S. market, for every five male shoe 
styles, with comparability based solely on design and construction of 
the footwear. A failure to rebut the unisex presumption would call into 
effect the criterion identified by the commenter as: ``(e) limited 
availability of comparable female styles.''
    CBP Response: CBP agrees in part and is proposing to base 
``unisex'' determinations on examination of the imported merchandise 
and to accept evidence in the form of marketing material, retail 
advertisements, or other convincing documentation showing that the same 
shoe is available for ``other persons'' in the U.S. marketplace. CBP is 
proposing to generally accept presentation of such evidence as 
satisfactorily demonstrating that the instant footwear is exclusively 
for ``men, youths and boys.''
    CBP is proposing to generally consider the marking of gender and 
size, to indicate men's size, youths' size, or boys' size, as 
acceptable evidence that a shoe is not ``unisex.''
    CBP does not agree that import documents describing footwear as 
being for men, youths or boys should constitute sufficient evidence 
that the footwear is not commonly worn by both sexes.
    Lastly, the commenter offered no evidence to support the position 
that footwear made on male lasts is not commonly worn by both sexes. In 
the absence of such evidence, CBP declines to adopt that position.
    Comment: With respect to factors used to determine that a female 
style is comparable to a male style, one commenter (as noted 
immediately above) asserts that comparability should be based only on a 
shoe's design and construction. Two commenters maintain that 
comparability should be based primarily on a shoe's retail price, but 
also on the features and the materials that comprise its upper and 
outer sole. One of these two commenters also considers the type of shoe 
to be a factor of comparability.
    CBP Response: CBP agrees and is proposing to limit the ``unisex'' 
determination to the characteristics of the shoe under consideration, 
in most cases making comparisons and presumptions unnecessary.
    Comment: Concerning the ratio of female-to-male styles that could 
establish the existence of a ``comparable line'' for females, three 
commenters maintain that the existence of at least one comparable 
female style (in either the importer's line, or in the U.S. market) for 
every five male styles (a one-to-five ratio) should be deemed 
sufficient. These same commenters also state that a one-to-three ratio 
(female-to-male styles), as an alternative standard, could be 
considered sufficient.
    CBP Response: CBP disagrees that either a one-to-five or one-to-
three ratio, female-to-male, is sufficient in the absence of the means 
and opportunity to examine and compare all styles of an importer's 
line. CBP is proposing, in the absence of marking as to gender, to 
require evidence that the same style of shoe for females is available 
in either the importer's line or the U.S. marketplace. CBP is not 
proposing to accept comparable styles as alternatives for the same 
style.
    Comment: With regard to any set percentage of use by (or sale to) 
females, of footwear claimed to be for males, indicative of footwear 
that is commonly worn by both sexes, one commenter suggests that 25 
percent is an

[[Page 41825]]

appropriate standard. The commenter contends that the 5 percent (one 
sale in twenty) standard utilized by CBP (subsequent to the court's 
finding in De Vahni International, Inc. v. United States, 66 Cust. Ct. 
239, C.D. 4196 (1971), that ``[s]uch infrequent usage [characterized by 
one sale in a hundred] could hardly be considered common'') is 
appropriate only as an indicator of de minimis usage.
    CBP Response: CBP agrees that the 5 percent standard does not 
provide an accurate indication that footwear is commonly worn by both 
sexes and is proposing to adopt a 25 percent standard.
    Comment: Concerning whether CBP should attempt to clarify, refine, 
and/or redefine terms such as ``category,'' ``type,'' ``style,'' 
``line,'' etc., as they relate to footwear, one commenter recommends 
that all such terms be left alone. The commenter notes that these terms 
have been expressed by CBP in appropriately broad terms, that fashion 
drives most aspects of the footwear industry, and that the market 
concepts are so fluid that any narrow definitions would soon be 
obsolete.
    CBP Response: CBP agrees and is not proposing, at this time, to 
attempt to clarify, refine, or redefine footwear-related terms such as 
those stated above.
    Comment: With regard to whether unisex standards should be limited 
only to provisions under heading 6403, HTSUS, one commenter opines that 
the standards should indeed be limited to that heading. The commenter 
notes that in the other headings covering footwear, gender is addressed 
only at the statistical level (i.e., the ten digit level), and stated 
as ``For men,'' ``For women,'' or ``Other,'' in contrast to eight digit 
subheadings under heading 6403, which reference footwear ``For men, 
youths or boys'' and ``For other persons.'' The commenter also notes 
that in January 2000, many references to gender at the statistical 
level in heading 6403 (e.g., ``misses,'' ``children,'' and ``infants'') 
were eliminated.
    CBP Response: CBP agrees and is proposing that unisex standards 
should be limited only to classifications within heading 6403, HTSUS.

CBP's Proposed Criteria

    Based upon the comments received and for the reasons set forth 
above, CBP is proposing the following criteria for its determination of 
whether footwear should be deemed to be ``unisex'' under heading 6403, 
HTSUS:
    (1) Footwear in sizes for men, youths or boys will not be 
considered to be ``commonly worn by both sexes'' (i.e., ``unisex'') if 
marked ``MEN'S SIZE----'', ``YOUTHS' SIZE----'', or ``BOYS' SIZE----''.
    (2) Even if not marked as described in criterion 1, footwear in 
sizes for men, youths or boys will not be considered to be ``commonly 
worn by both sexes'' (i.e., ``unisex'') if:
    a. The importer imports the same shoe for women and girls, or;
    b. Evidence is provided in the form of marketing material, retail 
advertisements, or other convincing documentation demonstrating that 
the same shoe for women and girls is available in the U.S. marketplace.
    (3) A style of footwear in sizes for males will not be presumed to 
be ``commonly worn by both sexes'' (i.e., ``unisex'') unless evidence 
of marketing establishes that at least one pair in four (25 percent) of 
that style is sold to and/or worn by females.
    (4) A determination that footwear is ``commonly worn by both 
sexes'' will trigger ``unisex'' classification treatment that is 
applicable to all sizes.

    Dated: June 23, 2006.
Deborah J. Spero,
Acting Commissioner, Customs and Border Protection.
[FR Doc. E6-11679 Filed 7-21-06; 8:45 am]
BILLING CODE 9111-14-P