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NY F82285




February 14, 2000

CLA-2-90:RR:NC:MM:105 F82285

CATEGORY: CLASSIFICATION

TARIFF NO.: 9021.19.85

Mr. John Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219

RE: The tariff classification of a post-operative shoe from China

Dear Mr. Pellegrini:

In your letter dated January 26, 2000, for Sroufe Health Care Products, Inc., you requested a tariff classification ruling.

You state that the sample, stock number 443, “has an outsole of rubber/plastic and is substantially more rigid than footwear used in normal wear”. You continue, “The upper is man made fiber and covers the foot from just forward of the instep to the heel. The two sides of the upper open wide to allow the foot to be set down on the shoe without bending. The sides of the upper are secured by man made fiber straps threaded through plastic D-rings. The straps have hook and loop closures. The merchandise is imported in single units, not pairs”.

From our examination, we note that the sample is symmetrical down its long axis, i.e., it is neither a “left” nor a “right”. Also, it is not labeled with a shoe size, but “WM”, which we take to be Women’s Medium. Both of these facts support your claims that they will be imported in single units and that they will be worn only following foot injury or surgery, routinely via a physician’s prescription.

As you have noted, the Notice published in the Customs Bulletin of March 18, 1998, proposing, in essence, to change the classification of similar items from HTS 9021 to HTS 6404 after a Change of Practice Notice in the Federal Register, has not led to any such Change of Practice. Therefore, the previous rulings you cite do presently remain in effect. Although the .7 inch thick outer sole in your sample is somewhat more flexible than the one in the ruling you cite because of significant thinning in the mid-foot along both sides, we agree it is still unusually rigid enough to ensure that it would be almost impossible to walk in a pair of them. The upper is almost identical.

We also note that the reason given in the CB Notice of January 7, 1998 for the underlying classification change was a classification decision made in March of 1996 by the Harmonized System Committee of the World Customs Organization. That decision was contrary to the previous rulings by U.S. Customs on similar items and the recommendation by NIS J. Sheridan, then assigned footwear in this Division, concerning the sample before them. We note that, in the interim, the HSC-WCO has apparently had second thoughts in this area. Per HSC-WCO document NG0017B1, a new chapter note is scheduled to be inserted in the Harmonized System as of January 1, 2002, which will state, “Orthopaedic appliances include footwear...mass-produced, presented singly and not in pairs and designed to fit either foot equally”. Of course, the United States will be obliged then to incorporate that Note into the HTS, assuming it goes into effect as planned. This would, of course, make moot the change of classification under the current HTS of future importations of items, like yours, which meet the new language.

The applicable subheading for this footwear will be 9021.19.85.00, Harmonized Tariff Schedule of the United States (HTS), which provides for “other” orthopedic or fracture appliances. The duty rate will be free.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter or the control number indicated above should be attached to the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Sheridan at 212-637-7037.

Sincerely,

Robert Swierupski Director,
National Commodity

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