HQ 087456: Child's athletic shoe

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 087456

                                   October 4, 1990



          CLA-2:CO:R:C:G  087456  SR

          CATEGORY:  Classification

          TARIFF NO.:  6402.91.4030

          Mr. Edward B. Ackerman
          Siegel, Mandell & Davidson
          One Whitehall Street
          New York, N.Y. 10004

          RE:  Child's athletic shoe

          Dear Mr. Ackerman:

               This is in reference to your letter dated June 6, 1990,
          requesting the tariff classification of a child's athletic shoe
          under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA).  A sample produced in Taiwan was submitted.

          FACTS:

               The merchandise at issue consists of a child's "Teenage
          Mutant Ninja Turtle" shoe.  The shoe has a unit molded bottom
          with a vinyl plastic upper, a textile tongue and a front lace
          closure.  Toe bumpers overlap approximately 34 percent of the
          upper by a height of at least 1/4 inch.  Overlap of the upper in
          the other areas of the shoe measures less than 1/16 of an inch.
          The shoe covers the ankle, and has "TURTLE POWER" and a picture
          of a "Teenage Mutant Ninja Turtle" on the side and back of the
          shoe.

          ISSUE:

               Whether the child's athletic shoe at issue has a foxing-like
          band.


















                                         -2-

          LAW AND ANALYSIS:

               The sole of the shoe at issue overlaps the upper in the toe
          portion of the shoe.  Any overlap of the sole at any area other
          than the toe bumper is minimal; less than 1/16 of an inch.  The
          rational expressed for finding a foxing-like band appears to have
          its origin in C.S.D. 83-103 which set forth an interpretation of
          the phrase "soles which overlap the upper other than at the toe
          or heel" in the light of the following criteria:

               1.  The sole must extend over and cover part of the upper.

               2.  In measuring overlap when the overlap is uniform, only
               one cut is to be made in the shoe, and that cut is to be
               made at the edge where the ball of the foot would normally
               rest.  If the overlap is not uniform, the cut should be made
               at the point where the greatest amount of overlap occurs.

               3.  A sole will be considered to overlap the upper if a
               vertical overlap of 1/16 inch or more exists from where the
               upper and the outsole initially meet measured on a vertical
               plane.  If this vertical overlap is less than 1/16 inch, the
               sole is presumed not to overlap the upper.

               The band on the shoe covers only 33 percent of the perimeter
          of the entire shoe.  Any overlap outside of the toe area is under
          1/16 of an inch.

               Headquarters Ruling Letter 087847, dated September 26, 1990,
          found that a children's shoe with a toe bumper that covered 30
          percent of the shoe, with minimal overlap outside the toe area,
          does not have a foxing-like band.

          HOLDING:

               The child's "Fighting Mutant Ninja Turtle" athletic shoe at
          issue does not have a foxing-like band.  It is classifiable under
          subheading 6402.91.4030, HTSUSA, which provides for other
          footwear with outer soles and uppers of rubber or plastics, other
          footwear,covering the ankle, having uppers of which over 90
          percent of the external surface area (including any accessories
          or reinforcements such as those mentioned in note 4(a) to this
          chapter) is rubber or plastics except (1) footwear having a



















                                         -3-

          foxing or a foxing-like band applied or molded at the sole and
          overlapping the upper and (2) except footwear (other than
          footwear having uppers which from a point 3 cm above the top of
          the outer sole are entirely of non-molded construction formed by
          sewing the parts together and having exposed on the outer surface
          a substantial portion of functional stitching) designed to be
          worn over, or in lieu of, other footwear as a protection against
          water, oil, grease or chemicals or cold or inclement weather, for
          youths and boys.  The rate of duty is 6 percent ad valorem.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division