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HQ 086084


February 28, 1990

CLA-2:CO:R:C:G 086084 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9021.90.80

Mr. James F. O'Hara
Stein Shostak Shostak & O'Hara
3580 Wilshire Boulevard
Los Angeles, CA 90010-2597

RE: Post-operative shoes; Modification of Ruling Letter 083995

Dear Mr. O'Hara:

This is in reference to your letter dated October 30, 1989, requesting the tariff classification of cast shoes and post- operative shoes under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The merchandise will be produced in Jamaica, Malaysia, or Taiwan.

FACTS:

The merchandise at issue is cast shoes and post-operative shoes. The outsole of the post-operative 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 with out bending. These shoes are worn following foot surgery, and are prescribed by a doctor.

The cast shoe is similar to the post-op shoe except it has a cushioned rocker bottom or outsole and no heel. This permits a person using crutches to have limited contact with the ground with the injured foot while walking. These shoes are intended to be worn by persons who have suffered a fracture 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).

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 shoes at issue would not be worn unless medically necessary. They are specifically designed to support the foot after an operation or a fracture has occurred. They also help prevent or correct bodily deformities by helping an injured foot heal correctly. They function in the same manner as crutches in that they assist someone with a foot injury in walking. In addition, these shoes are obtained by a doctor's prescription. Therefore, taking these factors into account, the footwear at issue is classifiable under the provision for orthopedic appliances.

HOLDING:

The cast shoes and post-operative shoes at issue are 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. If produced in Jamaica or Malaysia the merchandise is entitled to duty free treatment under GSP, if otherwise qualified.

Headquarters Ruling Letter 083995, dated May 3, 1989, classified several articles including the same type of post- operative footwear here in issue under subheading 9021.19.80, HTSUSA, as, orthopedic appliances, other orthopedic appliances. Based upon further review of that decision it has been deternimed that the classification of the orthopedic footwear there in issue is incorrect. Accordingly, HRL 083995, dated May 3, 1989, is hereby modified to reflect that the orthopedic footwear there in issue is classified in subheading 9021.90.80, HTSUSA.

Sincerely,

John Durant, Director

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