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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.

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:

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.

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

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