CLA-2 CO:R:C:M 952295 EJD
TARIFF NO: 6307.90.99; 6406.99.30
Mr. Gene Marrano
Air-Sea Forwarders, Inc.
4250 Pacific Highway
San Diego, California 92110
RE: Heel cup/anklet; Sole cushion; Other made up articles;
Composite goods; Subheadings 6212.90.00, 6406.99.15,
9021.19.80; HQs 081639, 083784, 085930, 086361, 950279,
951406, 951836, 952201
Dear Mr. Marrano:
This is in response to your request of June 11, 1992, for a
binding ruling on behalf of International Comfort Products, Ltd.,
concerning the tariff classification of a "heel cup/anklet" and a
"sole cushion" under the Harmonized Tariff Schedule of the United
States (HTSUS). Samples of each article were submitted for our
examination as well as additional information by your facsimiles
of August 31, 1992, and September 2, 1992.
FACTS:
HEEL CUP/ANKLET
The heel cup/anklet referred to as a "Tuli's Cheetah", is
manufactured in Korea. The heel cup/anklet is an ankle
supporting and foot cushioning device including a stretchable
anklet having a tubular body fitting over a portion of the foot
of the wearer and extending around the heel area to the ankle
area. The heel cup is made in the United States and is formed
from a relatively soft, flexible material such as molded rubber
or thermoplastic material. The exterior is provided with
projecting shock absorbing members formed in intersecting ribs.
In Korea, the anklet is constructed of an expandable elastic
material, either synthetic or natural rubber, (e.g., neoprene),
and attached to the heel cup by sewing.
The heel cup/anklet has a resilient body which defines a
recess to receive the heel portion of the foot of the wearer.
The resilient body is provided with shock absorbing means by the
intersecting ribs in the heel area. Additionally, the ankle is
supported by the anklet portion which also properly maintains the
heel cup in a controlled position to absorb shock.
The heel cup/anklet is intended to be used either by wearers
who wish to have the heel cushioned, but who also require precise
foot control and tactile sensation, (e.g., gymnasts), or inside a
high top boot in lieu of a standard heel pad. This device is
also helpful in maintaining the proper position of the heel cup
at the heel of the wearer in those high top boots which do not
easily lend themselves to the insertion of a separate heel cup.
SOLE CUSHIONS
The sole cushion is manufactured in Korea. The sole cushion
is another foot cushioning device which has a cup-like recess to
receive the heel. The sole cushion has a fully shaped, two color
"rubber or plastics" (R-P) portion which is made in the United
States. The heel portion of the sole cushion is formed from a
relatively soft, flexible material such as molded rubber or
thermoplastic material. Like the heel cup, the exterior of the
heel portion is provided with projecting members formed in
intersecting ribs. In Korea, a cut piece of fabric is attached
to the top surface of the R-P portion to form the sole cushion.
The sole cushion is designed to be inserted in ordinary
footwear to rest under approximately the back 2/3 of the wearer's
foot. The exterior of the body carries shock absorbing
projections extending from the rear of the heel portion at the
underside of the foot. The projections deform and deflect to
protect the foot by absorbing shock forces on the weight-bearing
portions of the foot.
You contend that the heel cup/anklet and sole cushion are
classifiable as orthopedic appliances under subheading
9021.19.80, HTSUS, with a rate of duty of 5.8 percent ad valorem.
In the alternative, you maintain that the heel cup/anklet is
classifiable as a body-supporting type article under subheading
6212.90.00, HTSUS, with a rate of duty of 7 percent ad valorem.
ISSUE:
Whether the "heel cup/anklet" and the "sole cushion" are
classifiable under the provisions for orthopedic appliances,
body-supporting type articles or under other provisions of the
HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes and, provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
GRI 2(b) provides that a reference to a material in a
heading shall be taken to include mixtures or combinations of
that material with other materials and that any reference to
goods of a given material shall be taken to include goods
consisting wholly or partly of that material; if goods consist of
more than one material, then classification will be according to
GRI 3.
GRI 3(a) requires that where two or more headings describe
the merchandise, the more specific will prevail; or if two or
more headings each refer to part only of the materials in the
goods, then classification will be according to GRI 3(b). GRI
3(b) states:
When...goods are, prima facie, classifiable under two or
more headings, classification shall be effected as follows:
Mixtures, composite goods consisting of different materials
or made up of different components, and goods put up in sets
for retail sale...shall be classified as they consisted of
the material or component which gives them their essential
character, insofar as this criterion is applicable.
The Harmonized Commodity Description and Coding System
(HCDCS) Explanatory Notes (ENs) constitute the Customs
Cooperation Council's official interpretation of the Harmonized
System. While not legally binding on the contracting parties,
and therefore not dispositive, the ENs provide a commentary on
the scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be
consulted. See T.D. 89-80.
I. CLASSIFICATION AS ORTHOPEDIC APPLIANCES
Heading 9021, HTSUS, provides for:
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...
EN 90.21 reads, in pertinent part, at 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:
* * *
(6) Orthopaedic footwear, having an enlarged leather
stiffener which may be reinforced with a metal or cork
frame, made only to measure.
(7) Special insoles, made to measure.
* * *
(9) Orthopaedic foot appliances (talipes appliances, leg
braces, with or without spring support for the foot,
surgical boots, etc.).
* * *
The heading does not include:
* * *
(b) Simple protectors or devices designed to reduce
pressure on certain parts of the foot....
* * *
(d) Mass-produced footwear the inner soles of which have
been simply arched to alleviate flat-footedness
(Chapter 64).
In Headquarters Ruling Letter (HQ) 083784, dated May 1,
1989, concerning the classification of post-operative shoes,
Customs stated that the footwear "...is not a shoe that would be
worn unless medically necessary.... In addition, these shoes are
obtained by a doctor's prescription." See also HQ 085930, dated
February 9, 1990.
In HQ 081639, dated August 25, 1989, discussing the
classification of orthopedic appliances, it states:
The fact that a product is aimed at a medical market does
not necessarily establish the medical nature of the product
since there may be other marketing considerations involved.
For example, a product for which outright medical claims or
even hints of curative properties are made can command a
higher price in a medical market than in a general one.
Based on the information provided and our findings in
previous rulings, it is our opinion that neither the heel
cup/anklet nor sole cushion under consideration would be
classifiable under heading 9021, HTSUS, as orthopedic appliances.
II. CLASSIFICATION OF HEEL CUP/ANKLET AS BODY-SUPPORTING TYPE
ARTICLE
You maintain that the heel cup/anklet is a brace and should
be classified under subheading 6212.90.00, HTSUS.
Heading 6212, HTSUS, provides for "[b]rassieres, girdles,
corsets, braces, suspenders, garters and similar articles and
parts thereof, whether or not knitted or crocheted."
The scope of the expression "similar articles," as used in
the terms of this heading, is discussed in the ENs to this
heading. EN 62.12 provides, in pertinent part, that this
heading covers "articles of a kind designed for wear as body-
supporting garments or as supports for certain other kinds of
apparel." HCDCS, p. 857. (Emphasis added.)
In HQ 952201, dated October 26, 1992, Customs determined the
classification of a lumbar support belt. The issue presented was
whether this article was similar to a body belt such that it is
classifiable under a provision for body-supporting garments, or
whether it was classifiable under a residual provision for other
made up textile articles. In HQ 952201, Customs stated that
"...while it is designed to support and prevent injury ... the
article in question is not a form of garment, nor is it worn
underneath other garments...."
It is our opinion that this heel cup/anklet is not similar
to any of the articles specified in heading 6212, HTSUS. It is
not a body-supporting garment as described in EN 62.12.
Therefore, classification in subheading 6212.90.00, HTSUS, is
precluded.
III. CLASSIFICATION UNDER OTHER PROVISIONS
A. HEEL CUP/ANKLET
Other made up textile articles are provided for in Chapter
63, HTSUS. Heading 6307, HTSUS, provides for "[o]ther made up
articles, including dress patterns."
EN 63.07 states, in pertinent part, that:
* * *
This heading covers made up articles of any textile
material which are not included more specifically in other
headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(27) Support articles of the kind...for joints (e.g., knees,
ankles, elbows or wrists) or muscles (e.g., thigh
muscles), other than those falling in other headings of
Section XI.
HCDCS, p. 868.
In HQ 952201, Customs classified a lumbar supporting belt in
the residual heading for made up textile articles. Customs has
classified other articles in this residual heading.
In HQ 951406, dated July 13, 1992, Customs dealt with the
classification of knee pads used in construction work, or in
performing gardening or household chores. Two headings were
possibly applicable to the type of knee pad used in the home,
gardening, and the construction industry: headings 6217 (other
made up clothing accessories) and 6307, HTSUS. Customs
determined that the knee pads were not an "accessory" within the
meaning of heading 6217, HTSUS, and classified knee pads not used
in sporting activities under subheading 6307.90.99, HTSUS, which
provides for "[o]ther made up articles ... [o]ther ... [o]ther
... [o]ther." See also HQ 951836, dated August 5, 1992.
Based on the foregoing, we are of the opinion that the heel
cup/anklet is classifiable under subheading 6307.90.99, HTSUS,
dutiable at the rate of 7 percent ad valorem.
B. SOLE CUSHIONS
As previously stated, we do not concur with your contention
that the sole cushion is classifiable as an orthopedic appliance.
You did not raise any alternative subheading for this
article. Based upon our review, we are of the opinion that the
sole cushions are classifiable in subheading 6406.99, HTSUS, as
removable insoles, heel cushions and similar articles. Exact
classification within subheading 6406.99, HTSUS, is based upon
the material of which that article is made. We believe that the
sample is a "composite good", as defined in GRI 3(b), of the
textile and R-P.
Two conflicting rulings have been issued regarding insoles
similar to this merchandise. In HQ 086361, dated May 24, 1990,
we ruled that the subject insoles were "of textile materials" and
stated that:
[t]he insoles ... [we]re cut from sheets of material which
[we]re classified in Section XI, specifically in Chapter 60,
and Chapter 56, HTSUSA, they [we]re considered to be textile
material for the purposes of Chapter 64, HTSUSA. They would
be classifiable in subheading 6406.99.15..., HTSUSA, which
provides for parts of footwear; removable insoles, heel
cushions and similar articles; other: of textile materials,
of man-made fibers: other.
In HQ 950279, dated December 24, 1991, we ruled that the
subject insoles were "of R-P". We stated that the insoles were
composite articles and the classification is governed by GRI
3(b).
Here, as in HQ 950279, it is clear that the R-P, not the
textile, imparts the essential character to this item.
For the reasons stated above, the sole cushions are
classifiable under subheading 6406.99.30, HTSUS, as:
[p]arts of footwear; removable insoles, heel cushions and
similar articles; gaiters, leggings and similar articles,
and parts thereof...[o]ther...[o]f other materials...[o]f
rubber or plastics.
The rate of duty is 5.3 percent ad valorem.
HOLDING:
The "heel cup/anklet" is classifiable under subheading
6307.90.99, HTSUS, with a rate of 7 percent ad valorem.
The "sole cushion" is classifiable under subheading
6406.99.30, HTSUS, with a rate of duty of 5.3 percent ad valorem.
EFFECT ON OTHER RULINGS:
In HQ 086361, dated May 24, 1990, an insole was held to be
classifiable under subheading 6406.99.15, HTSUS. Based upon the
above reasoning, it is our position that HQ 086361 is incorrect
and therefore it has been modified. See the enclosed copy of HQ
952864 of this date.
HQ 950279, dated December 24, 1991, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division