CLA-2:CO:R:C:G 083784 SR
Mr. James Caffentzis
Fitch, King and Caffentzis
116 John Street
New York, N.Y. 10038
RE: Classification of post-operative shoes
Dear Mr. Caffentzis:
This is in response to your letter of February 8, 1989,
requesting the classification of a post-operative shoe under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample from the Dominican Republic was provided.
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. There is
a very large padded tongue that is attached to one side of the
upper and covers the top of the foot and protects it from the
laces. There are five eyelets on each side, and the laces cross
over the large-middle section. 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.
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LAW AND ANALYSIS:
Chapter 64, HTSUSA, is the chapter that provides for
footwear. Note l(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. It
is entitled to free entry under the Generalized System of
Preferences, if otherwise qualified.
Sincerely,
John Durant, Director
Commercial Rulings Division