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HQ 083593


April 17 1989

CLA-2:CO:R:C:G 083593 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9021.90.80

Mr. Allan Gordon
Performance Trading
520 So. Lafayette Park Place
Suite 200
Los Angeles, Ca. 90057

RE: Classification of post-operative shoes

Dear Mr. Gordon:

This is in response to your letter of January 11, 1989, requesting the classification of a post-operative shoe under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted.

FACTS:

The merchandise at issue is post-operative shoes. The shoes consist of a non-bending base of wood with a rubber sole, and a thin layer of cushioning on top of the wood that provides some padding for the foot. The uppers of the shoes are made from a variety of materials but are all the same in style. The upper starts from behind the toe area and surrounds the foot. The upper is closed by either large laces across the middle of the foot or by hook and loop fasteners similar to the VELCRO brand strips. The shoe is open toed and the tongue area opens wide to allow the foot to be set down onto the shoe without bending. These shoes are intended to be worn by persons who have suffered a fracture or have had foot surgery and are usually prescribed by a doctor.

ISSUE:

Whether the merchandise at issue is classifiable as footwear or as an orthopedic appliance.

LAW AND ANALYSIS:

Chapter 64, HTSUSA, is the chapter that provides for footwear. Note 1(d) to Chapter 64 states that this chapter does not cover orthopedic footwear or other orthopedic appliances, or parts thereof (heading 9021). It is questionable whether these shoes are orthopedic appliances.

The Explanatory Notes are the official interpretation of the tariff at the international level. The Explanatory Note to heading 9021, HTSUSA, lists orthopedic appliances as appliances for preventing or correcting bodily deformities, or supporting or holding organs following an illness or operation. They are listed as including such items as appliances for the jaw, orthopedic footwear having an enlarged leather stiffener which may be reinforced with a metal or cork frame that is made to measure, special insoles made to measure, and orthopedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.). This Explanatory Note also includes crutches and crutch-sticks and excludes mass-produced footwear the inner soles of which have been simply arched to alleviate flat-footedness, which are not regarded as orthopedic footwear.

The footwear at issue is more than mass produced footwear with an arch added. The post operative shoe has a large unbending wooden base and a very wide open toe area; it is not a shoe that would be worn unless medically necessary. It is used to support the foot after an operation or a fracture has occurred. It also helps prevent or correct bodily deformities by helping a fractured foot heal correctly. It functions in the same manner as crutches in that it assists someone with a foot injury in walking. In addition, these shoes are obtained by a doctors prescription. Therefore, taking these factors into account, the footwear at issue is classifiable as orthopedic appliances.

HOLDING:

The merchandise at issue is classifiable under subheading 9021.90.80, HTSUSA, as orthopedic appliances, other, other. The rate of duty is 3.9 percent ad valorem under the General duty rate column.

Sincerely,

John Durant, Director

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