HQ 956809: 1801-94-100015; Arch supports; Parts of footwear; Orthopedic appliances

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 956809 

                              SEPTEMBER 19, 1994

CLA-2  CO:R:C:M 956809 DFC 

CATEGORY:  Classification 

TARIFF NO.: 6406.99.60  

District Director of Customs 
Suite 301 
4430 E. Adamo 
Tampa, Florida  33605

RE:  1801-94-100015;  Arch supports;  Parts of footwear; 
     Orthopedic appliances 

Dear District Director: 

       This is in response to Protest 1801-94-100015, covering a
shipment of leather arch supports produced in Germany. 

FACTS:

     The entry covering the leather arch supports was liquidated
on April 22, 1994, under subheading 6406.99.60, Harmonized Tariff
Schedule of the United States (HTSUS), which provides for parts
of footwear of leather with duty at the rate of 5% ad valorem. 
The protest was timely filed on April 25, 1994.  

     We note that the protestant entered the arch supports under
subheading 9021.90.80, HTSUS, which provides for orthopedic
appliances with duty at the rate of 3.9% ad valorem.  However, he
claimed on Customs Form 19 that the arch supports, which are
marketed and sold specifically as orthopedic appliances that help
relieve pain and inflammation of the ligament that supports the
arch of the foot, are properly classifiable under subheading
9021.90.90, HTSUS.  As this subheading has never existed, we will
assume that since the merchandise was entered under subheading
9021.90.80, HTSUS, that the protestant intended to claim that the
arch supports are classifiable thereunder.  

ISSUE:

     Are the arch supports precluded from classification as parts
of footwear because they are marketed and sold as orthopedic
devices?



LAW AND ANALYSIS: 

     Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's).  GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's taken in order]."  In other words,
classification is governed first by the terms of the headings of
the tariff and any relative section or chapter notes.  

     The competing provisions are as follows: 

     6406      Parts of footwear (including uppers whether or not
               attached to soles other than outer soles);
               removable insoles, heel cushions and similar
               articles; gaiters, leggings and similar articles,
               and parts thereof:
               Other: 
               
               *                   *                   * 

     6406.99   Of other materials 

               *                   *                   * 

     6406.99.60     Of leather                                    
                                                                  
                                           
     9021      Orthopedic appliances, including
               crutches, surgical belts and trusses;
               splints and other fracture appliances;
               artificial parts of the body; hearing
               aids and other appliances which are worn
               or carried, or implanted in the body, to
               compensate for a defect or disability;
               parts and accessories thereof: 

               *                   *                   * 

     9021.90   Other: 

     9021.90.80    Other  









     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive
should be looked to for the proper interpretation of the HTSUS. 
See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).  EN (II) to
heading 64.06, provides in pertinent part on page 880, as
follows: 

     The heading also excludes: 
 
   *      *         * 

   (e)    special in-soles for arch supporting, made to measure,
          and orthopaedic appliances (heading 90.21).

     EN (1) to heading 90.21 provides in pertinent part on page
1497, as follows: 

                   (1) ORTHOPAEDIC APPLIANCES 

      These are appliances for: 
    (i)   Preventing or correcting bodily deformities; or 
    (ii)  Supporting or holding organs following an illness or
          operation.  

        They include: 

          *              *                   * 
     
       (7) Special insoles, made to measure.  

          *                   *              * 
  
     The subject arch supports were not made to measure noting
the Spiess Shoe Corporation listing furnished which states that
"one width fits all."  Consequently, following the above cited
EN's, the arch supports would not be included as orthopedic
appliances in heading 9021, HTSUS.  Further, they are not
excluded from classification under subheading 6406.99.60, HTSUS. 














HOLDING: 

     The protest should be denied.  In accordance with Section
3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993,
Subject:  Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision.  Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.  


                                   Sincerely,




                                   John Durant, Director 
                                   Commercial Rulings Division