HQ 085930: 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 085930

                                  February 9, 1990



          CLA-2:CO:R:C:G  085930  SR

          CATEGORY:  Classification

          TARIFF NO.:  9021.90.80

          Susan Kohn Ross
          Herrick & Ross
          5777 West Century Blvd.
          Suite 520
          Los Angeles, Ca. 90045-5659

          RE: Post-operative shoes

          Dear Ms. Ross:

               This is in reference to your letter dated October 5, 1989,
          requesting the tariff classification of post-operative shoes
          under the Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA).  A sample produced in 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.  The upper starts from behind the toe area and surrounds
          the foot.  The shoe is open toed and the two sides of the upper
          open 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 under the
          provision for orthopedic appliances.

          HOLDING:

               The merchandise at issue is classifiable under subheading
          9021.19.80, HTSUSA, as an orthopedic or fracture appliances,
          other, other.



















                                         -3-


          The rate of duty is 5.8 percent ad valorem under the General duty
          rate column.  This ruling modifies prior rulings holding such
          footwear to be classified in subheading 9021.90.80, HTSUSA.

                                       Sincerely,





                                       John Durant, Director
                                       Commercial Rulings Division