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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.

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
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

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