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HQ 087508


September 27, 1990

CLA-2 CO:R:C:G 087508 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.99.15; 6406.99.3060

Peter Jay Baskin, Esq.
Sharretts, Paley, Carter & Blauvelt
67 Broad Street
New York, New York 10004

RE: Orthopedic footwear and insoles

Dear Mr. Baskin:

This letter is in response to your inquiry, dated June 21, 1990, concerning the tariff classification of orthopedic footwear and insoles under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted for our examination.

FACTS:

The sample consists of a shoe and an insole. The shoe has a plastic upper which does not cover the ankle and a cellular rubber outer sole. The shoe is designed to accommodate an arthritic, diabetic or otherwise distended or hyper-sensitive foot by means of a rounded identation on the inside of the shoe at the toe area. In addition, the shoe closure is adjustable and fastens by means of two velcro straps which pass over the instep of the foot. The insole is made of silicone gel and it is designed to be worn inside the shoe.

The shoe and the insole will be imported together or as separate articles from Canada.

ISSUE:

Whether the instant shoe and insole when imported together are classifiable in Heading 9021, HTSUSA, as orthopedic appliances or rather in Heading 6402, HTSUSA, as footwear; when imported separately is the insole classified in Heading 6406, HTSUSA, as parts of footwear.

LAW AND ANALYSIS:

Chapter 64, HTSUSA is the chapter that provides for footwear. Legal Note 1(d) to Chapter 64, HTSUSA, states that:

This chapter does not cover:

(d) Orthopedic footwear or other orthopedic appliances, or parts thereof (heading 9021)

The Explanatory Notes constitute the official interpretation of the Harmonized Tariff Schedule at the international level. Explanatory Note (II) to Heading 6404, HTSUSA, provides that:

The heading [6404] also excludes:

(e) special in-soles for arch supporting, made to measure, and orthopedic appliances (heading 9021)

Heading 9021, HTSUSA, provides for, inter alia, orthopedic appliances, including crutches, surgical belts, and trusses. Explanatory Note (I) to Heading 9021, HTSUSA, provides the following:

(I) ORTHOPEDIC APPLIANCES

These are appliances for:

(i) Preventing or correcting bodily deformities; or

(ii) Supporting or holding organs following an illness or operation.

According to the Explanatory Notes orthopedic appliances include 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.). In addition, this Explanatory Note includes crutches and crutch-sticks and excludes mass-produced footwear the insoles of which have been simply arched to alleviate flat- footedness, which are not regarded as orthopedic footwear.

It is our opinion based on the Legal and Explanatory Notes, that the instant shoe and insole are not orthopedic articles excluded from classification in Headings 6402 and 6406, HTSUSA, respectively. Though the shoe and the insole would add to the comfort of the shoe wearer and would increase the shock absorption for the elimination of fatigue to the wearer, neither article is designed to prevent or correct a deformity. Unlike crtuches or surgical boots, neither the shoe nor insole are used to support the foot after an operation or a fracture has occurred. In addition, even though the sole can be trimmed to fit as required, the insole is not made to measure for a specific individual when imported. Therefore, the shoe and the insole are classified in Headings 6402 and 6406, HTSUSA, respectively.

HOLDING:

The shoe imported with or without the insole is classifiable in subheading 6402.99.15, HTSUSA, which provides for other footwear with outer soles and uppers of rubber or plastics, other footwear, other, 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 footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper and except footwear 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), other. The rate of duty is 6 percent ad valorem. Articles originating in Canada and classified in this subheading are eligible for a duty rate of 4.8 percent ad valorem, under the United States-Canada Free Trade Act (FTA), if all the applicable requirements are met.

The insole, imported separately, is classifiable in subheading 6406.99.3060, which provides for parts of footwear, removable insoles, heel cushions and similar articles; of rubber or plastics. The rate of duty is 5.3 percent ad valorem. Articles originating in Canada and classified in this subheading are eligible for a duty rate of 4.2 percent ad valorem, under the United States-Canada Free Trade Act (FTA), if all the applicable requirements are met.

Your sample is returned under separate cover.

Sincerely,

John Durant, Director
Commercial Rulings Division

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