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41822 Federal Register / Vol. 71, No.

141 / Monday, July 24, 2006 / Notices

DEPARTMENT OF HOMELAND regular business days between the hours of certain women’s sizes, whether for
SECURITY of 9 a.m. and 4:30 p.m. at the Office of females or of types commonly worn by
Regulations and Rulings, Bureau of both sexes (i.e, unisex). Elsewhere in the
Bureau of Customs and Border Customs and Border Protection, 799 9th HTSUS (in subheadings 6403.99.75 and
Protection Street, NW., 5th Floor, Washington, DC. 6403.99.90, for example), footwear is
[USCBP–2006–0021] Arrangements to inspect submitted classified as ‘‘for other persons,’’ a
comments should be made in advance definition that also includes unisex
Standards for Tariff Classification of by calling Mr. Joseph Clark at (202) 572– footwear. The determination of whether
Unisex Footwear 8768. footwear is classifiable as ‘‘for men,
SUPPLEMENTARY INFORMATION: youths and boys’’ rather than ‘‘for
AGENCY: Customs and Border Protection; women’’ or ‘‘for other persons,’’
Department of Homeland Security. Public Participation
therefore, often rests on whether the
ACTION: Proposed interpretation; Interested persons are invited to footwear is truly for men, youths and
solicitation of comments. submit written data, views, or boys or is, in fact, unisex. The rates of
arguments on all aspects of the duty applicable to footwear ‘‘For other
SUMMARY: This document proposes new proposed interpretation. CBP also persons’’ (i.e. ‘‘unisex’’) are about 1.5
criteria to be used by the Bureau of invites comments that relate to the percent higher than the rates applicable
Customs and Border Protection (‘‘CBP’’) economic, environmental, or federalism to footwear ‘‘For men, youths and
to determine whether footwear should effects that might result from this boys’’. It is noted that quota/visa
be considered to be ‘‘commonly worn by proposed interpretation. Comments that requirements remain inapplicable to
both sexes’’ (unisex) for tariff will provide the most assistance to CBP footwear.
classification purposes under the in developing these procedures will Many types of footwear may be, and
Harmonized Tariff Schedule of the reference a specific portion of the in fact are, worn by both sexes.
United States. The rates of duty proposed interpretation, explain the Moreover, many types of shoes in male
applicable to footwear ‘‘For other reason for any recommended change, sizes feature no physical characteristics
persons’’ (i.e. ‘‘unisex’’) are about 1.5 and include data, information, or that distinguish the footwear as being
percent higher than the rates of duty authority that support such exclusively for males. Current CBP
applicable to footwear ‘‘For men, youths recommended change. standards for making the determination
and boys’’. CBP is seeking comments
Background of whether or not footwear is unisex
from the public on its proposed criteria
This document sets forth CBP’s have been developed and applied by
prior to adoption of a final
proposed standards for classification of CBP on an ad hoc, case-by-case basis.
interpretation.
certain footwear as ‘‘unisex’’. On April This approach to the ‘‘unisex’’ footwear
DATES: Comments must be received on issue, while effective in individual
15, 2002, CBP’s predecessor, the U.S.
or before September 22, 2006. cases, has provided only limited
Customs Service (hereinafter ‘‘CBP’’, for
FOR FURTHER INFORMATION CONTACT: clarity and consistency), published in guidance to the importing community
Brian Barulich, Tariff Classification and the Federal Register (67 FR 18303) a and to CBP officers with respect to other
Marking Branch, Office of Regulations general notice to solicit comments prospective or current import
and Rulings, (202) 572–8883. concerning alternatives to CBP’s transactions that present different
ADDRESSES: You may submit comments, treatment of footwear deemed to be factual patterns involving that issue.
identified by docket number, by one of ‘‘unisex.’’ Four comments were received CBP’s current approach to unisex
the following methods: in response to that notice. In this determinations is as follows: CBP
• Federal eRulemaking Portal: http:// document, CBP addresses the concerns considers certain types or categories of
www.regulations.gov. Follow the and suggestions raised in those footwear to at least be susceptible to
instructions for submitting comments comments and proposes standards for unisex treatment (that is, to be
via docket number USCBP–2006–0021. determining whether footwear should classifiable as footwear ‘‘for other
• Mail: Trade and Commercial be classified as unisex footwear. This persons’’ despite claims that the
Regulations Branch, Office of document solicits further comment on footwear is designed and intended
Regulations and Rulings, Bureau of the proposed interpretation before a solely ‘‘for men, youths and boys’’).
Customs and Border Protection, 1300 final interpretation is published. These types of footwear include hikers,
Pennsylvania Avenue, NW., (Mint sandals, work boots, cowboy boots,
Annex), Washington, DC 20229. Current Law and Policy combat boots, motorcycle boots,
Instructions: All submissions received Chapter 64 of the Harmonized Tariff ‘‘athleizure’’ shoes, boat shoes, and
must include the agency name and Schedule of the United States (HTSUS) various types within the class described
docket number for this document. All covers footwear, gaiters and the like, as athletic footwear (e.g., tennis shoes
comments received will be posted and parts of such articles. Disparities in and training shoes). CBP generally
without change to http:// the duty rates applicable to some considers that a type of footwear is
www.regulations.gov, including any provisions under heading 6403 in ‘‘commonly worn by both sexes’’ if the
personal information provided. For Chapter 64 are based on the gender of number of styles claimed to be for males
detailed instructions on submitting the user. Additional U.S. Note 1(b) and in an importer’s line, when compared to
comments and additional information, Statistical Note 1(b) to Chapter 64, the number of styles in the line for
see the ‘‘Public Participation’’ heading HTSUS, provide that footwear ‘‘for men, females, renders it likely that females
of the SUPPLEMENTARY INFORMATION youths and boys’’ covers footwear of will purchase and wear at least 5
section of this document. certain men’s and youths’’ sizes, but percent of the styles claimed to be for
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Docket: For access to the docket to does not cover footwear commonly males. Once it is determined that an
read background documents or worn by both sexes (i.e., unisex imported line of footwear potentially
comments received go to http:// footwear). Statistical Note 1(c) to susceptible to unisex treatment is in fact
www.regulations.gov. Submitted Chapter 64, HTSUS, provides that ‘‘commonly worn by both sexes,’’ CBP
comments may also be inspected during footwear ‘‘for women’’ covers footwear applies unisex treatment to that

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Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Notices 41823

footwear line only in sizes up to and Summary of Comments worn by both sexes. One commenter
including American men’s size 8. All four of the commenters who cites to Treasury Decision (T.D.) 93–88,
However, if a shoe in an imported line responded to the general notice dated October 25, 1993, as an example
claimed to be for males is of a type of provided a range of specific comments of CBP’s use of presumption in applying
footwear commonly worn by both sexes, on various aspects of the ‘‘unisex’’ the above statutory standard. In T.D. 93–
CBP does not accord unisex treatment to footwear issue. These comments are 88, certain footwear definitions were
the imported line if a ‘‘comparable line’’ discussed below. provided for use as guidelines by the
of styles is available to females. To be Comment: All of the commenters take importing community. Under the term
considered a ‘‘comparable line,’’ CBP issue with the fact that CBP confines its ‘‘unisex,’’ it stated, in part, that
requires an equal number of styles of a ‘‘unisex’’ footwear determinations in ‘‘[u]nless there is evidence to the
particular type of footwear (i.e., a one- every case to the footwear of a particular contrary, assume all athletic shoes for
to-one ratio, female-to-male is required). importer’s line. They argue that CBP youths (approximately sizes 11.5 to 2)
In addition, to be considered a should consider the availability of and men, sizes 8 and smaller, are unisex
‘‘comparable line,’’ female styles must except shoes for football, boxing or
comparable styles for females in the
be substantially similar to the styles for wrestling.’’ In addition, T.D. 93–88
U.S. retail market to constitute, or
males in general appearance, value, indicates that CBP will not assume that
substitute for, any part of the importer’s
marketing, activity for which designed, certain shoes are unisex if there is
‘‘comparable line’’ for females. The
and component material (including ‘‘evidence to the contrary.’’ The
commenters note that this narrow focus
percentage) breakdowns. commenter complains that CBP
leads to inaccurate findings that an
For purposes of establishing the provides very little guidance to the
importer’s footwear for males is
existence of a ‘‘comparable line’’ for importing community as to the type or
‘‘commonly worn by both sexes’’ (i.e.,
females, CBP confines its determination amount of evidence needed to refute
unisex). The commenters point out that
to the imported footwear at issue. CBP unreasonable presumptions.
the precise question raised by CBP Response: CBP agrees and is
may take notice of additional styles Additional U.S. Note 1(b) to chapter 64, proposing to consider evidence of
made available by the importer that are is whether footwear is ‘‘commonly worn marketing provided by importers and
not included in a particular entry. CBP by both sexes.’’ They maintain that CBP others, and the marking of gender and
does not, however, consider the improperly applies this statutory size. By considering this evidence, CBP
availability of comparable styles for standard of ‘‘use’’ through hopes to limit determinations that are
females in the U.S. market as a whole. presumptions, essentially basing factual based solely on presumption as to how
Finally, CBP does not consider the fact determinations on: (1) The size and type footwear will be used.
that a certain shoe is not marketed to of shoe; and (2) the number of various Comment: One commenter notes that
women to be evidence that the shoe is styles (male and/or female) included in CBP has previously ascertained the
not ‘‘commonly worn by both sexes.’’ an importer’s line of merchandise. availability of women’s styles and sizes
Request From Public to Provide Two of the commenters concede that in the retail market, to determine
Enhanced Guidance in most cases, confining the inquiry to whether shoes claimed to be ‘‘for men,
the importer’s line of footwear provides youths and boys’’ were classifiable as
In a letter dated September 17, 1999, a reliable estimate as to whether footwear ‘‘for other persons.’’ The
the importing public, represented by the footwear for males is commonly worn commenter asserts that in Headquarters
Footwear Distributors and Retailers of by both sexes. This is particularly true Ruling Letter (HQ) 955960, issued
America (‘‘FDRA’’), requested that CBP when the importer is a ‘‘branded August 19, 1994, CBP determined that
take steps to provide enhanced guidance distributor’’ of the footwear it imports, certain basketball shoes were classified
in determinations concerning ‘‘unisex’’ as opposed to a ‘‘non-branded as unisex because ‘‘retailers, as well as
issues. The FDRA requested that CBP (1) importer,’’ who provides footwear to a administrative staff members of a major
set forth criteria for determining retailer under the retailer’s brand or a college women’s basketball team, stated
whether footwear claimed to be ‘‘for generic brand. However, the that women will buy men’s basketball
men, youths and boys’’ is ‘‘commonly commenters assert that, in the case of shoes when a suitable selection is not
worn by both sexes’’ and therefore the non-branded importer, confining the available in the women’s department.’’
should be classified as footwear ‘‘for ‘‘unisex’’ determination to the The commenter opines that such an
other persons’’ and (2) ensure the importer’s line of footwear not only approach, based on available evidence,
uniform interpretation and application provides an unreliable estimate as to is sensible and correct. The commenter
of those criteria by Customs field whether footwear for males is further notes that in HQ 952097 (issued
offices. commonly worn by both sexes, but also September 15, 1992), CBP concluded
Preliminary Notice results in the misclassification of that certain soccer shoes were classified
footwear. as unisex based on informal interviews
After receiving the FDRA letter, CBP CBP Response: CBP agrees and, in an with retailers.
published a document in the Federal effort to bring more consistency to this CBP Response: As indicated above,
Register (67 FR 18303) on April 15, area, is proposing to consider evidence CBP agrees with the commenter and is
2002. In that document, CBP set forth a from an importer of men’s footwear proposing to consider evidence of
more in depth analysis of its current demonstrating that it imports the same marketing provided by importers and
procedures, and also set forth FDRA’s shoe for women and girls or that the others, as well as the marking of gender
proposed criteria. CBP solicited same shoe for women and girls is and size.
comments on the appropriateness of the imported by a separate importer and is Comment: Another commenter
specific standards suggested by FDRA available in the U.S. marketplace. suggests that, regardless of the type of
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and on the extent to which any Comment: All of the commenters evidence CBP decides to require or
standards followed by CBP in the past stress that, in certain cases, importers accept, the agency should not have to
should be retained. Suggestions for must be allowed the opportunity to perform its own market research, as it
alternative appropriate standards were present evidence to establish that their apparently did before issuing HQ
also invited. footwear for males is not commonly 962742, dated February 28, 2001. This

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41824 Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Notices

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

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Federal Register / Vol. 71, No. 141 / Monday, July 24, 2006 / Notices 41825

appropriate standard. The commenter ‘‘YOUTHS’ SIZEll’’, or ‘‘BOYS’ FOR FURTHER INFORMATION CONTACT:
contends that the 5 percent (one sale in SIZEll’’. Robert A. Knight, Department of
twenty) standard utilized by CBP (2) Even if not marked as described in Housing and Urban Development, 451
(subsequent to the court’s finding in De criterion 1, footwear in sizes for men, 7th Street, SW., Washington, DC 20410;
Vahni International, Inc. v. United youths or boys will not be considered to telephone (202) 708–1060, Ext. 5893
States, 66 Cust. Ct. 239, C.D. 4196 be ‘‘commonly worn by both sexes’’ (this is not a toll-free number), (or via
(1971), that ‘‘[s]uch infrequent usage (i.e., ‘‘unisex’’) if: the Internet at
[characterized by one sale in a hundred] a. The importer imports the same shoe Robert_A._Knight@hud.gov) or Michael
could hardly be considered common’’) for women and girls, or; Davis, U.S. Census Bureau,
is appropriate only as an indicator of de b. Evidence is provided in the form of Manufacturing and Construction
minimis usage. marketing material, retail Division, Room 2126, FOB 4,
CBP Response: CBP agrees that the 5 advertisements, or other convincing Washington, DC 20233–6900, at (301)
percent standard does not provide an documentation demonstrating that the 763–1605 (or via the Internet at
accurate indication that footwear is same shoe for women and girls is Michael.Davis@census.gov.
commonly worn by both sexes and is available in the U.S. marketplace.
proposing to adopt a 25 percent SUPPLEMENTARY INFORMATION: The
(3) A style of footwear in sizes for Department will submit the proposed
standard. males will not be presumed to be
Comment: Concerning whether CBP information collection to OMB for
‘‘commonly worn by both sexes’’ (i.e., review, as required by the Paperwork
should attempt to clarify, refine, and/or ‘‘unisex’’) unless evidence of marketing
redefine terms such as ‘‘category,’’ Reduction Act of 1995 (44 U.S.C.
establishes that at least one pair in four Chapter 35, as amended).
‘‘type,’’ ‘‘style,’’ ‘‘line,’’ etc., as they (25 percent) of that style is sold to and/
relate to footwear, one commenter This Notice is soliciting comments
or worn by females. from members of the public and affected
recommends that all such terms be left (4) A determination that footwear is
alone. The commenter notes that these agencies concerning the proposed
‘‘commonly worn by both sexes’’ will collection of information to: (1) Evaluate
terms have been expressed by CBP in trigger ‘‘unisex’’ classification treatment
appropriately broad terms, that fashion whether the proposed collection of
that is applicable to all sizes. information is necessary for the proper
drives most aspects of the footwear
industry, and that the market concepts Dated: June 23, 2006. performance of the functions of the
are so fluid that any narrow definitions Deborah J. Spero, agency, including whether the
would soon be obsolete. Acting Commissioner, Customs and Border information will have practical utility;
CBP Response: CBP agrees and is not Protection. (2) Evaluate the accuracy of the agency’s
proposing, at this time, to attempt to [FR Doc. E6–11679 Filed 7–21–06; 8:45 am] estimate of the burden of the proposed
clarify, refine, or redefine footwear- BILLING CODE 9111–14–P collection of information; (3) Enhance
related terms such as those stated above. the quality, utility, and clarity of the
Comment: With regard to whether information to be collected; and (4)
unisex standards should be limited only Minimize the burden of the collection of
DEPARTMENT OF HOUSING AND
to provisions under heading 6403, information on those who are to
URBAN DEVELOPMENT
HTSUS, one commenter opines that the respond; including through the use of
standards should indeed be limited to [Docket No. FR–5043–N–06] appropriate automated collection
that heading. The commenter notes that techniques or other forms of information
in the other headings covering footwear, Notice of Proposed Information technology that will reduce respondent
gender is addressed only at the Collection for Public Comment: Survey burden (e.g., permitting electronic
statistical level (i.e., the ten digit level), of Manufactured (Mobile) Home submission of responses.) This Notice is
and stated as ‘‘For men,’’ ‘‘For women,’’ Placements requesting a revision of a currently
or ‘‘Other,’’ in contrast to eight digit approved collection.
AGENCY: Office of Policy Development This Notice also lists the following
subheadings under heading 6403, which and Research, HUD.
reference footwear ‘‘For men, youths or information:
ACTION: Notice. Title of Proposal: Survey of
boys’’ and ‘‘For other persons.’’ The
commenter also notes that in January Manufactured (Mobile) Home
SUMMARY: The proposed information
2000, many references to gender at the Placements.
collection requirement described below OMB Control Number: 2528–0029.
statistical level in heading 6403 (e.g., will be submitted to the Office of
‘‘misses,’’ ‘‘children,’’ and ‘‘infants’’) Description of the need for the
Management and Budget (OMB) for information and proposed use: The
were eliminated. review, as required by the Paperwork
CBP Response: CBP agrees and is Survey of Manufactured (Mobile) Home
Reduction Act. The Department is Placements collects data on the
proposing that unisex standards should soliciting public comments on the
be limited only to classifications within characteristics of newly manufactured
subject proposal. homes placed for residential use
heading 6403, HTSUS.
DATES: Comments Due Date: September including number, sales price, location,
CBP’s Proposed Criteria 22, 2006. and other selected characteristics. HUD
Based upon the comments received ADDRESSES: Interested persons are uses the statistics to respond to a
and for the reasons set forth above, CBP invited to submit comments regarding Congressional mandate in the Housing
is proposing the following criteria for its this proposal. Comments should refer to and Community Development Act of
determination of whether footwear the proposal by name and/or OMB 1980, 42 U.S.C. 5424 note, which
should be deemed to be ‘‘unisex’’ under Control Number and should be sent to: requires HUD to collect and report
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heading 6403, HTSUS: Reports Liaison Officer, Office of Policy manufactured home sales and price
(1) Footwear in sizes for men, youths Development and Research, Department information for the nation, census
or boys will not be considered to be of Housing and Urban Development, regions, states, and selected
‘‘commonly worn by both sexes’’ (i.e., 451 7th Street, SW., Room 8226, metropolitan areas and to monitor
‘‘unisex’’) if marked ‘‘MEN’S SIZEll’’, Washington, DC 20410. whether new manufactured homes are

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