HQ 083716: Classification of post-operative shoes

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 083716

                                     May 1, 1989


          CLA-2:CO:R:C:G  083716  SR

          CATEGORY:  Classification

          TARIFF NO.:  9021.90.80

          Mr. H. Darrel Darby II
          Darco International, Inc.
          1038 1/2 Sixth Avenue
          Huntington, West Virginia 25701

          RE: Classification of post-operative shoes

          Dear Mr. Darby:

               This is in response to your letter of January 26, 1989,
          requesting the classification of a post-operative shoe under the
          Harmonized Tariff Schedule of the United States Annotated
          (HTSUSA).  A sample from Taiwan was submitted.

          FACTS:

               The merchandise at issue is post-operative shoes.  The
          outsole of the 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. but are all the same in style.  The upper starts from
          behind the toe area and surrounds the foot.  There is a very
          large padded tongue that is attached to one side of the upper and
          covers the top of the foot.  The shoe has two VELCRO-type  strap
          closures that fasten over the middle of the foot.  The shoe is
          open toed and the tongue area opens wide to allow the foot to be
          set down onto the shoe with out 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