HQ 083593
April 17 1989
CLA-2:CO:R:C:G 083593 SR
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.
-2-
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
Commercial Rulings Division