CLA-2-64:OT:RR:NC:N4:447
Ms. Tracey Topper Gonzalez
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP
399 Park Avenue, 25th Floor
New York, NY 10022-4877
RE: The tariff classification of footwear from China
Dear Ms. Gonzalez:
In your letters dated December 21, 2010 and July 20, 2011, you requested a tariff classification ruling on behalf of Rikco International, LLC, d/b/a/ Dr. Comfort, Mequon, Wisconsin.
Dr. Comfort shoes are said to be specially adapted for and most typically purchased by people with diabetes. You provided illustrations of five diabetic shoe styles along with their respective laboratory reports which identify the upper component materials of each shoe by percentage.
The “Performance” style shoe is described by you as a men’s “athletic-style” shoe that does not cover the ankle and has an outer sole of rubber or plastics. You state that the upper is 59.01% rubber/plastics. The shoe features a bungee lace closure and a foxing or a foxing-like band. You provided an F.O.B. value of $18.88 - $19.28/pair.
The “Endurance” and “Endurance Plus” styles are described by you as men’s “athletic-style” shoes that do not cover the ankle and have outer soles of rubber or plastics and uppers of predominantly leather material; 68.46% and 71.95%, respectively. You provided F.O.B. values of $21.11 - $21.78 and $18.84 - $19.16/pair, respectively.
The “Victory” and “Victory Plus” styles are described by you as women’s “athletic-style” shoes that do not cover the ankle and have outer soles of rubber or plastic and uppers of predominantly leather material; 69.20% and 71.88%, respectively. You provided F.O.B. values of $20.06 - $20.78 and $19.37 - $20.09, respectively.
With the exception of the “Performance” style, they all have either lace-up or Velcro® hook and loop closures. In your letter you state the packaging of the articles at the time of importation indicates that these articles are for the handicapped and that the inserts are included with the shoes. The shoes provide the essential character for classification purposes.
You suggest that the “Performance” style shoe be classified under subheading 6402.99.9031, Harmonized Tariff Schedule of the United States (HTSUS), which provides for in pertinent part, footwear that is not athletic. We agree with your suggested classification only to the eighth digit. Additional U.S.Note 2, HTSUS, defines athletic footwear as “tennis shoes, basketball shoes, gym shoes, training shoes and the like, whether or not principally used for such athletic games or purposes.”
The applicable subheading for the “Performance” style of footwear will be 6402.99.9005, HTSUS, which provides for other footwear with outer soles and uppers of rubber or plastics: other footwear: other: other: not having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements) is rubber or plastics; footwear which has a foxing or a foxing like band ; valued over $12/pair: tennis shoes, basketball shoes, gym shoes, training shoes and the like. The rate of duty will be 20 percent ad valorem.
You suggest that the “Endurance” and “Endurance Plus” styles be classified under subheading 6403.99.6075, HTSUS, which provides for in pertinent part, footwear that is not athletic. We agree with your suggested classification only to the eighth digit. Additional U.S.Note 2, HTSUS, defines athletic footwear as “tennis shoes, basketball shoes, gym shoes, training shoes and the like, whether or not principally used for such athletic games or purposes.”
The applicable subheading for the “Endurance” and “Endurance Plus” styles of footwear will be 6403.99.6040, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: other footwear: not covering the ankle; other: other: other: for men, youths and boys: tennis shoes, basketball shoes, gym shoes, training shoes and the like, for men: other. The rate of duty will be 8.5 percent ad valorem.
You suggest that the “Victory” and “Victory Plus” styles be classified under subheading 6403.99.9065, HTSUS, which provides for in pertinent part, footwear that is not athletic. We agree with your suggested classification only to the eighth digit. Additional U.S.Note 2, HTSUS, defines athletic footwear as “tennis shoes, basketball shoes, gym shoes, training shoes and the like, whether or not principally used for such athletic games or purposes.”
The applicable subheading for the “Victory” and “Victory Plus” styles of footwear will be 6403.99.9031, HTSUS, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: other footwear: not covering the ankle; other: other: other: for other persons: valued over $2.50/pair: other: tennis shoes, basketball shoes, gym shoes, training shoes and the like, for women: other. The rate of duty will be 10 percent ad valorem.
Regarding your claim of duty free treatment under HTSUS 9817.00.96, this footwear goes beyond being simply extra adjustable and convenient. The copies of the design patterns, etc., submitted by you show they have been constructed by the maker according to the importer’s specifications, most notably, but not exclusively, with extra depth in the toe box and forefoot. You also state that each style is imported with “heat-moldable inserts” which are intended to be heated and molded to accommodate each of the wearer’s feet.
Headquarters Ruling Letter 964169 - JFS, June 26, 2001, et al, indicates that diabetes blood sugar monitors for home use are presumed to be for the use or benefit of persons suffering from a permanent or chronic physical impairment which substantially limits one or more major life activities. Although diabetes monitors are also often used by those with borderline diabetes who are asymptomatic, a diabetic using these shoes clearly has a foot problem caused by the diabetes.
On the other hand, while blood sugar monitors are only of use to diabetics, the shoes in question would be useful to others with various foot problems. However, those other problems might well be permanent or chronic and substantially limit the major life activity of walking. Also, the channel of trade for these shoes is Doctor Comfort, which markets itself as carrying “The Finest Quality Diabetic Footwear Period!” Also, while there is no way to verify, for each style, the percentage of the purchasers (if eligible for Medicare) who receive reimbursement from Medicare under the Therapeutic Shoe Bill, each purchaser will receive certification that the style meets the specific physical requirements of the statute.
Although the styles are covered by the Therapeutic Shoe Bill, we agree that they are not excluded as “therapeutic articles” in CBP’s interpretation of HTSUS, Chapter 98, Subchapter 17, US Note 4-b-iii. For example, Headquarters Ruling Letter 561940 – KSG, February 7, 2001, did not exclude ophthalmic surgical microscopes, explaining “they are not used in procedures which remove or lessen the disease which caused the underlying condition.”
On that basis we agree that a secondary classification will apply for the footwear in HTSUS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped (except articles for the blind), free of duty and user fees (if any). Note that the requirement that you prepare and file a U.S. Department of Commerce form ITA-362P has been eliminated via a notice from the International Trade Administration, published in the Federal Register of June 1, 2010. Also note that this classification has no effect on any quota, visa, or restricted merchandise requirements.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported.
If you have any questions regarding the classification of these items in 9817.00.96, HTSUS, contact National Import Specialist J. Sheridan at 646-733-3012. If you have any questions regarding the ruling contact National Import Specialist Stacey Kalkines at (646) 733-3042.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division