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HQ 960466





February 18, 1998

CLA-2 RR:CR:TE 960466 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.19.80

Ms. Sandra L. Haupt
Tower Group International, Inc.
128 Dearborn Street
Buffalo, New York 14207-3198

RE: Reconsideration of New York Ruling Letter (NY) B82189; Heading 6404; EN to Heading 9021; Orthopedic Footwear "Made Only to Measure;" HSC 17th/18th Sessions

Dear Ms. Haupt:

This letter is in response to your request of May 1, 1997, on behalf of your client, Colonial Shoe Company, for reconsideration of NY B82189, issued February 26, 1997, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of an article identified as an orthopedic shoe made in China. A sample was submitted with the request.

FACTS:

In NY B82189, issued February 26, 1997, Customs classified the merchandise in subheading 6404.19.80, Harmonized Tariff Schedule of the United States (HTSUS), the provision for "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $6.50 but not over $12 per pair."

The sample, identified as an orthopedic shoe and further described as the "Gripper," has an ankle height, neoprene upper with an external surface composed of textile fabric. The upper
closes by means of a hook and loop fabric fastener strap at the ankle. The shoe has an ethylene-vinyl acetate copolymer (EVA) midsole, onto which is cemented a flexible rubber outer sole. The shoe is mass-produced in standard sizes and is sold in pairs.

Marketing materials, excerpts from various publications, and other information submitted, indicate that the shoe is listed as a device with the United States Food and Drug Administration (FDA), is often medically-indicated or prescribed, is obtained through medical supply outlets, and is thought by many medical professionals to benefit sufferers of diabetes, arthritis, corns, hammertoes, lupus, bunions, neuromas, neuropathy, scleroderma, etc.

ISSUE:

Whether the shoe is classified as footwear under heading 6404, or as orthopedic footwear under heading 9021, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 6404, HTS, covers "Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials." Note 1(e) to chapter 64, HTSUS, states that "This Chapter does not cover: Orthopedic footwear or other orthopedic appliances, or parts thereof (heading 9021)."

Among other merchandise, heading 9021, HTS, covers "Orthopedic appliances, including crutches...splints and other fracture appliances...other appliances which are worn or carried...to compensate for a defect or disability; parts and accessories thereof." The EN to heading 9021 indicate that
orthopedic appliances are appliances for: "(i) Preventing or correcting bodily deformities; or (ii) Supporting or holding organs following an illness or operation." In pertinent part, 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.

Although shoes such as the "Gripper" are designed, intended, and often prescribed, for persons suffering foot discomfort from any of a variety of diseases or conditions, the purpose of such shoes is essentially to provide comfort, not to prevent/correct deformities or support organs. The sole of the "Gripper" is flexible, not rigid (as would be, for example, the sole of a post-operative orthopedic shoe). As the EN also indicate, articles properly classified under heading 9021, HTS, are made to measure. The fact that the "Gripper" is not made to measure for use by a specific individual further demonstrates that its classification as an orthopedic appliance under heading 9021 would not be appropriate.

The additional fact that the "Gripper" is listed with the FDA as a medical device does not mandate that it be classified under heading 9021. The characteristics that other government agencies may attribute to imported articles for purposes other than tariff classification do not determine classification. (See Headquarters Ruling Letter (HQ) 955887, issued August 4, 1994, for a similar finding.) As stated above, Customs classifies goods in accordance with the GRI, the terms of the headings and any relative section or chapter notes, and is guided by the EN.

You should also be aware that, in March 1996, at its 17th session, the World Customs Organization's Harmonized System Committee (HSC) examined the classification of mass-produced, post-operative footwear designed for patients recovering from foot surgery or metatarsal injury. The specific representative sample examined by the committee was identified as the "Technol Post-Op" shoe. The committee voted to strictly interpret the EN to heading 9021, HS, which as previously noted, indicate that orthopedic footwear included in the heading is limited to that which is "made to measure." On this basis, the committee determined that the "Technol Post-Op" shoe was precluded from classification in heading 9021, HS, in that it was mass-produced.

Classification of the "Technol Post-Op" shoe was deemed appropriate in either subheading 6402.99 or 6404.19, HS, depending upon the composition of the outer sole and upper. The committee's decision to classify the "Technol Post-Op" shoe in chapter 64 was memorialized in an Amendment to the Compendium of Classification Opinions, which was adopted at the 18th session of the HSC. It is Customs position that the HSC's classification decision should be followed. Action is therefore being taken to revoke several rulings in which mass-produced, post-operative footwear has been classified in subheading 9021.90.80, HTSUS. See HQ 086084, issued February 28, 1990, HQ 085930, issued February 9, 1990, HQ 083784, issued May 1, 1989, HQ 083716, issued May 1, 1989, and HQ 083593, issued April 17, 1989.

The essential characteristics and features of the "Gripper" are not similar to those of the post-operative shoes discussed above. While the shoe may indeed be medically necessary, be dispensed by prescription, and be registered with the FDA, we find that it is essentially designed to alleviate foot discomfort, not to address deformities nor to immobilize and support the foot's bone structures during post-operative healing. The "Gripper" shoe is properly classified in subheading 6404.19.80, HTSUS.

HOLDING:

The shoe described as the "Gripper" is classified in subheading 6404.19.80, HTSUS, which provides for "Footwear with outer soles of rubber, plastics...and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $6.50 [6 dollars and 50 cents] but not over $12 [twelve dollars] per pair." The general column one duty rate is 90 cents per pair plus 20 percent ad valorem.

NY B82189, issued February 26, 1997, is hereby affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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