HQ 086982: Child's low-top athletic-type shoes with foxing-like band

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 086982

                        December 13, 1990



CLA-2 CO:R:C:G  086982   ALS

CATEGORY: Classification

Tariff NO.: 6402.99.70

Mr. Edward B.Ackerman
Siegel, Mandell and Davidson
One Whitehall Street
New York, New York 10004

RE:  Child's low-top athletic-type shoes with foxing-like band

Dear Mr. Ackerman:

     This is in reference to your letter of March 23, 1990,
requesting the tariff classification on a low top child's
athletic-type shoe, style 1293, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA).  A sample of
the finished shoe, as well as a sample of the sole used in the
shoe, produced in the People's Republic of China, was submitted.
An additional sample of the shoe was provided when we advised you
that the original sample appeared to be imperfect and may not
have been truly representative of the production article.

FACTS:

     The article in question is a child's low-top athletic-type
shoe with "Teenage Mutant Ninja Turtle" characters and logos
prominently displayed on the upper, insole, outside, tongue and
closures.  The shoe is composed of a vinyl plastic upper, a
textile tongue and two plastic hook and loop strap closures
across the instep.  On one sample the straps are sewn onto one
side of the blucher of the shoe, go through elongated eyelets in
the opposite side of the blucher of the shoe and then fold back
on themselves.  On the other sample one strap is similar to the
above.  The second strap is sewn onto itself around a plastic tab
external to the shoe and passes through a similar external tab
before folding back on itself.


                              - 2 -

     The article has a cemented-on black and white unit-molded
rubber/plastic bottom with a design and the words turtle power
molded therein.  Placement of a straight edge across the sample
of the sole at several points reveals a cupping of that surface
of the sole.

     Toe bumpers overlap approximately 25 percent of the upper by
a height of at least 1/4 inch.  The overlap in other areas of the
shoe varies, equaling or exceeding 1/8 inch height at some
points, while being of a lesser height at other points.  Such a
variance was found in each set of samples.  The variance
differed between the samples.

     You noted that the samples provided were not the same as
earlier prototypes of the "Teenage Mutant Ninja Turtle" shoes
which our New York Seaport Area Office held, in several
decisions, had a foxing-like band.

LAW AND ANALYSIS

     The article in question is an athletic-type shoe with vinyl
plastic uppers and unit molded outsoles.  The amount which the
outsoles overlap the shoe uppers, ignoring the toe bumpers,
varies.

     Treasury Decision (T.D.) 83-116, contains Customs
guidelines as to the characteristics of a foxing-like band.  The
seventh characteristic therein, which is relevant hereto,
provides that unit molded footwear is considered to have a
foxing-like band if the unit molded bottom overlaps the shoe
upper by 1/4 inch or more.  Headquarters ruling letter (HRL)
087098 of June 12, 1990, provided clarification as to the
application of this guideline.  It noted that the 1/4 inch
overlap was applicable to adult shoes and that 1/8 inch and 1/16
inch would be used for children's or infant's shoes,
respectively, as the point at which the presumption arises that
foxing-like band exists.

     The sole of the shoe in the instant case overlaps the upper
in the toe portion of the shoe in excess of 1/4 inch.  The
overlap of the sole in other areas of the shoe is not uniform and
at some points exceeds 1/8 inch.  Since the rationale for finding
a foxing-like band appears to have had 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", we referred
thereto for guidance.  The interpretation therein relied on the
following criteria:

                              - 3 -

     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 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.

     In applying these criteria, particularly that portion of
criterion 2 which references a situation where the overlap is not
uniform, we note that the overlap outside the toe area, in both
samples, exceeds 1/8 inch at some points.  While the point at
which the greatest overlap occurs differs as between the samples,
we believe it is reasonable to presume that production shoes
would similarly show an overlap of 1/8 inch or more at various
points.

     We noted that the samples in the instant case are the latest
in a series of child's low-top athletic-type shoes with "Teenage
Mutant Ninja Turtle" characters and logos prominently displayed
on the various surfaces of the shoes.  Samples previously
submitted to our New York Seaport Area Office in connection with
earlier ruling requests have been uniformly held to have a
foxing-like band.  A review of the narrative description of the
shoes in each of those rulings would seem to indicate that all
the shoes are essentially similar.  The narrative description of
the shoes in those rulings is not sufficiently detailed to permit
us to distinguish between the current article and those articles
which were the subject of the earlier rulings.  Unfortunately,
the samples on which the earlier rulings were based are not
available for measurement or visual comparison with the current
articles.

     We next considered the value of the articles.  Although the
value of the subject shoes was not specified in your letter, we
noted that the referenced earlier rulings had assumed that the
shoes were valued at over $3.00 but not over $6.50 per pair.
Since there is nothing to contradict that value assumption, we
presume it remains correct.

                              - 4 -

HOLDING:

     The child's "Teenage Mutant Ninja Turtle" athletic-type
shoes, style 1293, have a foxing-like band.  Based thereon and
presuming that they are valued at over $3.00 but not over $6.50
per pair, such shoes would be classifiable under subheading
6402.99.70, HTSUSA, as other footwear with outsoles and uppers of
rubber or plastics, other footwear, other, other, other, valued
over $3 but not over $6.50 per pair.  The shoes would be subject
to a general rate of duty of 90 cents per pair plus 37.5 percent
ad valorem.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division