[Federal Register Volume 72, Number 182 (Thursday, September 20, 2007)]
[Notices]
[Pages 53790-53792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18588]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

[USCBP-2006-0021; CBP Dec. 07-78]


Interpretive Rule Concerning Classification of Unisex Footwear

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Final interpretion.

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SUMMARY: This document adopts as final, with minor changes, a proposed 
interpretive rule regarding the criteria to be used by U.S. Customs and 
Border Protection (``CBP'') to determine whether footwear is considered 
to be ``commonly worn by both sexes'' (unisex) for tariff 
classification purposes under Heading 6403 of the Harmonized Tariff 
Schedule of the United States (``HTSUS'') that was published in the 
Federal Register on July 24, 2006. 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.'' The criteria set forth in this document will promote 
uniformity in the classification of subject footwear, thereby ensuring 
that proper duties are collected.

DATES: Effective Date: October 22, 2007.

FOR FURTHER INFORMATION CONTACT: Alexandra (Sasha) Kalb, Tariff 
Classification and Marking Branch, Regulations and Rulings, Office of 
International Trade, (202) 572-8791.

SUPPLEMENTARY INFORMATION: 

Background

    This document sets forth the criteria to be used by CBP to 
determine whether footwear should be considered ``unisex'' for tariff 
classification purposes. Chapter 64, 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, not including unisex footwear (i.e., ``footwear commonly worn by 
both sexes''). 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 many types of footwear may be, and in fact are, 
worn by both sexes. In addition, many types of shoes in male sizes do 
not feature physical characteristics to designate that the footwear is 
intended exclusively for males. The standards employed for purposes of 
determining whether footwear is considered unisex had been developed 
and applied by CBP on an ad hoc, case-by-case basis. This approach, 
while effective in individual cases, had provided only limited guidance 
to the importing community and to CBP officers with respect to other 
import transactions involving different factual circumstances.

Request From Public To Provide Enhanced Guidance

    In a letter dated September 17, 1999, the footwear 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 
specifically requested that CBP set forth the criteria for determining 
whether footwear claimed to be ``for men, youths and boys'' is 
considered ``commonly worn by both sexes'' and therefore classifiable 
as footwear ``for other persons.'' The FDRA additionally requested that 
CBP ensure the uniform interpretation and application of those criteria 
by CBP field offices.

Preliminary Notice

    After receiving the above-referenced letter, CBP published a 
general notice in the Federal Register (67 FR 18303) on April 15, 2002. 
In that document, CBP set forth its criteria for determining what 
constitutes unisex footwear for tariff classification purposes as well 
as the criteria proposed by the FDRA. In addition, CBP solicited 
comments on the appropriateness of the standards proposed by the FDRA 
and on the extent to which any standards followed by CBP in the past 
should be retained. Suggestions for alternative standards were also 
invited. Four comments were received in response to the preliminary 
notice.

Proposed Interpretive Rule

    CBP published a proposed interpretive rule in the Federal Register 
(71 FR 41822) on July 24, 2006. In the proposed interpretive rule, CBP 
reiterated its traditional criteria for determining what constitutes 
unisex footwear, addressed the four comments received in response to 
the preliminary notice, and proposed new criteria for purposes of 
determining whether footwear should be considered unisex for tariff 
classification purposes. The criteria set forth by CBP in the proposed 
interpretive rule, to be applied in sequential order, are:
    (1) Footwear in sizes for men, youths and 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

[[Page 53791]]

trigger ``unisex'' classification treatment that is applicable to all 
sizes.
    In addition to providing the proposed classification criteria set 
forth above, CBP solicited additional comments in the proposed 
interpretive rule. The prescribed public comment period closed on 
September 22, 2006.

Discussion of Comments

    Three submissions were received in response to the solicitation of 
comments in the proposed interpretive rule. Two of the submissions were 
provided by a law firm on behalf of various footwear importers. A 
separate law firm, on behalf of a trade association consisting of 
footwear retailers, importers, and producers, provided the third 
submission. A description of the various comments contained in the 
submissions, and CBP's analysis related thereto, is set forth below.

Comment

    A commenter indicated that criterion (1) Is ambiguous on a number 
of practical points and suggested amending it by permitting ``clear 
abbreviations'' to be used in the marking, as well as permitting 
marking on just one shoe per pair, and marking on stickers and hang 
tags instead of the shoes themselves. In addition, a commenter 
requested that CBP state the minimum form or manner of marking which 
footwear must have in order not to be considered ``commonly worn by 
both sexes'' under criterion (1).

CBP Response

    CBP requires that the country of origin be marked on both shoes in 
a pair in order to ensure that the marking is conspicuous. The 
rationale behind this requirement is that a prospective purchaser may 
inspect and try on only one shoe for fit prior to purchase. 
Traditionally, size markings are also provided on both shoes in a pair. 
Accordingly, CBP requires that that the marking described under 
criterion (1) also be on both shoes in a pair. Since the country of 
origin already must appear on both shoes, and because sizes also 
traditionally appear on both shoes, we do not view this requirement as 
an undue burden to importers.
    Certain kinds of footwear, usually inexpensive shoes sold in retail 
packages or bags, not the type that is usually tried on for fit prior 
to purchase, have been found to be legally marked by means of stickers 
or hang tags. CBP will also accept stickers or hang tags on this type 
of footwear as an indication that the footwear is not ``commonly worn 
by both sexes'' if the marking is sufficiently permanent, conspicuous, 
and legible to indicate the required information to the ultimate 
purchaser in the United States.
    With respect to abbreviations, it is CBP's position that using 
``YTH'' to indicate ``YOUTHS''' is acceptable. However, CBP finds that 
the required MEN'S or BOYS markings are already concise and that these 
markings do not lend themselves to abbreviation. Consequently, the use 
of abbreviations for these markings is unnecessary and unacceptable.
    Thus, there are two possible methods for marking footwear under 
criterion (1) in order for such footwear not to be considered 
``commonly worn by both sexes'' and trigger ``unisex'' classification.
    The first acceptable marking under criterion (1) is: MEN'S SIZE --
--, YOUTHS' SIZE ---- or BOYS' SIZE----.
    Alternatively, the second acceptable marking under criterion (1) 
is: MEN'S SIZE ----, YTH SIZE ----, or BOYS' SIZE ----.

Comment

    A commenter requested that a ``gender symbol'' be permitted to 
satisfy the marking mentioned in criterion (1).

CBP Response

    If an importer chooses to mark footwear with gender symbols in 
addition to the marking in criterion (1), that will serve as further 
evidence that the footwear is ``not commonly worn by both sexes.'' 
However, gender symbols alone will not satisfy CBP that the footwear is 
``not commonly worn by both sexes.''

Comment

    A commenter stated that it understands that criterion (3) does not 
require an importer to conduct a market survey. Rather, the importer 
would make entry based on its marketing approach.

CBP Response

    CBP does not require the importer to conduct a market survey. If 
the importer chooses not to mark imported footwear in the manner 
indicated in criterion (1) and no female version of the subject 
footwear is demonstrated to exist, and CBP determines that the footwear 
is the type ``commonly worn by both sexes,'' that footwear will be 
deemed ``unisex'' and entered accordingly. If an importer disagrees, 
CBP will consider a market survey, submitted by the importer, that 
establishes that at least one pair in four (25 percent) of the subject 
footwear is not sold to and/or worn by females.

Comment

    A commenter requested that CBP clarify criterion 2(b) by defining 
or explaining the meaning of ``same'' shoe.

CBP Response

    ``Same'' shoe in the context of criterion 2(b) means either having 
the same style number or name with a female prefix or suffix to 
indicate gender or, if not having the same style number or name, made 
with the same materials, with the same features and value, and designed 
for the same purpose as the subject shoe.

Comment

    A commenter stated that the final rule should clarify that 
marketing studies ``will be used sparingly at CBP's discretion'' and 
that conclusions made as a result of the marketing studies can be 
applied to unliquidated and future entries of footwear studied.

CBP Response

    If the importer chooses not to mark imported footwear in the manner 
indicated in criterion (1) and no female version of the subject 
footwear is demonstrated to exist in the U.S. marketplace as indicated 
in criterion (2), and CBP determines that the footwear is the type 
``commonly worn by both sexes,'' that footwear will be deemed 
``unisex'' and entered accordingly. If an importer disagrees, CBP will 
consider market surveys, submitted by the importer, that establish that 
at least one pair in four (25 percent) of the subject footwear is not 
sold to and/or worn by females. Conclusions made as a result of the 
marketing studies will be applied to all entries of the subject 
footwear whose liquidation is not final.

Comment

    A commenter recommended that the sequence of the criteria be 
revised so that criterion (3) appears first because ``if there is no 
evidence establishing that the footwear is sold to and/or worn by 
females, the remaining three standards do not come into play.''

CBP Response

    Criterion (3) is a default rule which is to be implemented only 
when criterions (1) and (2) do not apply. Criterion (3) is only 
applicable in situations where the importer has not marked the imported 
footwear, no female version of the subject footwear is demonstrated to 
exist in the U.S. marketplace, and CBP determines that the footwear is 
the type ``commonly worn by both sexes.'' As a result, the sequence of 
the criteria cannot be revised so that default criterion (3) appears 
first.

[[Page 53792]]

Comment

    A commenter requested that CBP make it clear that non-U.S. sizes 
and conversion charts will not be considered in determining whether 
footwear is deemed ``unisex'' and that size/gender labels are 
controlling.

CBP Response

    CBP only requires that imported footwear bear country of origin 
markings. The marking of imported footwear as described in criterion 
(1) is entirely voluntary and is intended to assist CBP in the 
determination of whether or not footwear is ``commonly worn by both 
sexes.'' The size/gender label will generally be controlling.

Comment

    A commenter stated that if criterion (2) is to have any practical 
meaning, it must be revised to permit a showing that comparable 
footwear is available in women's and girls' sizes.

CBP Response

    CBP does not consider comparability to be relevant to the 
determination of whether a particular style is ``unisex.'' CBP will 
consider marketing material, retail advertisements, or other convincing 
documentation demonstrating that the same style of shoe is available in 
the U.S. marketplace.

Comment

    A commenter recommended that CBP indicate that an importer may rely 
on the size designations, whether or not there is a gender indication, 
in classifying footwear at the statistical level.

CBP Response

    Size designation alone will generally determine the classification 
of footwear unless the footwear is ``commonly worn by both sexes.''

Conclusion

    Upon due consideration of the comments received, CBP has decided to 
adopt as final the proposed interpretive rule, which was published in 
the Federal Register (71 FR 41822) on July 24, 2006, with allowance 
made for the permitted abbreviation to criterion (1) and minor 
editorial changes to criterion (2). Specifically, in order to clarify 
the requirements under criterion (2), criteria 2(a) and 2(b) in the 
final interpretive rule will reference the ``same style of shoe'' as 
opposed to the ``same shoe''. Thus, the final interpretive rule with 
the minor changes is set forth below.

Final Interpretive Rule

    The criteria to be utilized by CBP for determining whether footwear 
should be considered to be ``unisex'' under Heading 6403, HTSUS, are:
    (1) Footwear in sizes for men, youths and boys will not be 
considered to be ``commonly worn by both sexes'' (i.e., ``unisex'') if 
marked ``MEN'S SIZE----'', ``YOUTHS' (or YTH) 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 style of 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 style of 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: September 17, 2007.
W. Ralph Basham,
Commissioner, U.S. Customs and Border Protection.
[FR Doc. E7-18588 Filed 9-19-07; 8:45 am]
BILLING CODE 9111-14-P