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HQ 085930


February 9, 1990

CLA-2:CO:R:C:G 085930 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9021.90.80

Susan Kohn Ross
Herrick & Ross
5777 West Century Blvd.
Suite 520
Los Angeles, Ca. 90045-5659

RE: Post-operative shoes

Dear Ms. Ross:

This is in reference to your letter dated October 5, 1989, requesting the tariff classification of post-operative shoes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample produced in Taiwan was submitted.

FACTS:

The merchandise at issue is post-operative shoes. The outsole of the shoe is a very thick, stiff piece of rubber. The insole is made up of a thin, stiff board, with a thin layer of rubber on top to provide some padding for the foot. The upper is made of a nylon material with a thin layer of padding as a lining. The upper starts from behind the toe area and surrounds the foot. The shoe is open toed and the two sides of the upper open 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 under the provision for orthopedic appliances.

HOLDING:

The merchandise at issue is classifiable under subheading 9021.19.80, HTSUSA, as an orthopedic or fracture appliances, other, other.

The rate of duty is 5.8 percent ad valorem under the General duty rate column. This ruling modifies prior rulings holding such footwear to be classified in subheading 9021.90.80, HTSUSA.

Sincerely,


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