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HQ 952295

January 5, 1993

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.



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.


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.


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?


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.


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:


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.


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.



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.


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

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.


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.


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.


John Durant, Director

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