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HQ 964981

September 10, 2001

CLA-2:RR:CR:TE 964981 JFS


TARIFF NO.: 6406.99.30, HTSUSA

Tri Hawk Corporation
150 Highland Road
Massena, NY 13662

RE: Request for Reconsideration of NY F89221, dated July 31, 2000; Insoles; Heading 6406, HTSUSA; Not Orthopedic Appliances.

Dear Sir or Madam:

On July 31, 2000, New York Ruling Letter (NY) F89221, was issued to AEI Customs Brokerage Services in response to their request for a binding ruling on your behalf, on the tariff classification of insoles. In that ruling, the insoles were classified under subheading 6406.99.30, of the Harmonized Tariff Schedule Annotated (HTSUSA), which provides for: “Parts of footwear . . .; removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles and parts thereof: Other: Of rubber or plastics.” You contend that the proper classification for the insoles is under subheading 9021.90.8000, HTSUSA, which provides, in pertinent part, 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 . . . compensate for a defect or disability; parts and accessories thereof: Other: Other.”

Customs notes that on April 23, 1993, Customs issued NY 884996, to Mr. Norman Krieger on your behalf. The article under consideration in NY 884996, was the same article (Orthofit 9000) that was considered in NY F89221, and that is the subject of this ruling. In both of the New York rulings Customs classified the Orthofit 9000 under subheading 6406.99.30. On July 25, 2001, Customs published a Notice of Proposed Rulemaking governing administrative rulings issued under 19 CFR Part 177. Customs Bulletin, Vol. 35, No. 30. The proposed regulations governing rulemaking adopted a “two-bites-at-the-apple” principle. Under the proposed regulations, this request for reconsideration would not be entertained. FACTS:

The submitted sample is an insole, "Tri Hawk Orthofit 9000," which is designed for the treatment of foot ailments by podiatrists and orthopedic surgeons. The insole is a thin, stiff piece of plastic. It is described as an insole that the medical professional modifies to fit the patient. After identifying the problem, the doctor heats the insole until it is pliable, holds the foot on the "orthotic" until it cools and hardens, and adds posts or wedges as needed. The insole itself is stiff and inflexible both before and after modification. The insole is mass-produced, imported in pairs and is sold in pairs to physicians. However, it is not necessary that the treating physician use both the left and the right insole on a single patient. The Orthofit 9000 is designed to fit into any style of footwear and is an alternative for patients who cannot afford the cost of "orthotics" or laboratory-made devices.


Whether insoles that are mass-produced, imported in pairs and are cut to shape are classifiable as orthopedic insoles under heading 9021, HTSUSA, or as parts of footwear heading 6406, HTSUSA.


Classification under the HTSUSA 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 Harmonized Commodity Description and Coding System, Explanatory Notes (EN), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In pertinent part, heading 6406.99.30, HTSUSA, covers “Parts of footwear . . .; removable insoles, heel cushions and similar articles; . . .” Note 1(e) to chapter 64, HTSUSA, states that "This Chapter does not cover: Orthopedic footwear or other orthopedic appliances, or parts thereof (heading 9021)."

Among other merchandise, heading 9021, HTSUSA, 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 strictly interpret the provision. They state that orthopedic appliances 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.

. . .

As the EN state, articles that are properly classified under heading 9021, HTSUSA, are "made to measure," that is, constructed in accordance with measurements taken on the one intended to wear the article. Even though the Orthofit 9000 inserts require some fitting by means of applying heat for molding to the wearer’s foot, and are designed so that posts, extensions and covers can be added, they are mass-produced, not “made to measure.” Additionally, the Orthofit 9000 inserts are imported and sold to physicians in pairs and are available in nine sizes. Thus, they are not properly classified as orthopedic appliances under heading 9021. This determination is consistent with past Customs rulings concerning insoles and footwear. See, Headquarters Ruling Letter (HQ) 956809, dated September 19, 1994 (classifying arch supports as parts of footwear under heading 6404, HTSUSA, because they were not made to measure); HQ 086361, dated May 24, 1990 (classifying insoles and heel pads under heading 6404, HTSUSA, because they were not made to measure); HQ 961556, dated May 10, 1999 (classifying shoes designed to be worn to alleviate foot discomfort and that were not made to measure, under heading 6404, HTSUSA); and HQ 087508, dated September 27, 1990. Moreover, effective January 1, 2002, amendments to the Legal Notes to Chapter 90, HTS, will go into effect. One of the amendments will replace Note 6 with the following language:

For the purposes of heading 90.21, the expression “orthopaedic appliances means appliances for:

- Preventing or correcting bodily deformities; or

- Supporting or holding parts of the body following an illness, operation or injury.

Orthopaedic appliances include footwear and special insoles designed to correct orthopaedic conditions, provided that they are either (1) made to measure or (2) mass-produced, presented singly and not in pairs and designed to fit either foot equally.

Thus, the new Note 6 will allow for the classification of mass-produced orthopedic insoles in heading 9021, HTSUSA. However, the Orthofit 9000 insoles still will not merit classification under heading 9021, HTSUSA, because they are presented in pairs and are not designed to fit either foot equally.

Based on the Legal and Explanatory Notes, the Orthofit 9000 insoles are not orthopedic insoles classifiable under heading 9021, HTSUSA. The insoles are parts of footwear and are classified in Heading 6406, HTSUSA.


The “Orthofit 9000” is classified under subheading 6406.99.30, HTSUSA, which provides for: “Parts of footwear . . .; removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles and parts thereof: Other: Of rubber or plastics.” The general column one rate of duty is 5.3% ad valorem.


John Durant, Director Commercial Rulings Division

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