Reconsideration and Affirmance of HQ 960466; AdditionalShoe Considered; Not Orthopedic Footwear; Footwear forDiscomfort due to Disease, Disorder, Deformity

HQ 961556 May 10, 1999 CLA-2 RR:CR:TE 961556 GGD CATEGORY: Classification TARIFF NO.: 6404.19.80 Mr. Stephen P. O’Hare OMI Corporation 1710 Cumberland Point Drive, Suite 5 Marietta, Georgia 30067 RE: Reconsideration and Affirmance of HQ 960466; Additional Shoe Considered; Not Orthopedic Footwear; Footwear for Discomfort due to Disease, Disorder, Deformity Dear Mr. O’Hare: This letter is in response to your request of March 27, 1998, for reconsideration of Headquarters Ruling Letter (HQ) 960466, issued February 18, 1998, which itself was a reconsideration of New York Ruling Letter (NY) B82189, issued February 26, 1997, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of footwear identified as orthopedic shoes made in China. A sample shoe described as the “Gripper” was submitted in connection with the request to reconsider NY B82189. Additional sample shoes described as “Pedors” have been submitted in connection with the current request and these have been examined and considered. FACTS: In HQ 960466, issued February 18, 1998, Customs affirmed NY B82189, issued February 26, 1997, in which Customs had classified the “Gripper” in subheading 6404.19.80, HTSUSA, 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 -2- $6.50 but not over $12 per pair.” Both HQ 960466 and NY B82189 were issued to Tower Group International, Inc., on behalf of Colonial Shoe Company. In HQ 960466, the “Gripper” was described as having an ankle height neoprene upper with an external surface composed of textile fabric. The upper was closed by means of a hook and loop fabric fastener strap at the ankle. The shoe had an ethylene-vinyl acetate (EVA) copolymer midsole, onto which was cemented a flexible rubber outer sole. The shoe was mass-produced in standard sizes and sold in pairs. Marketing materials, excerpts from publications, and other information submitted, indicated that the shoe was listed as a device with the United States Food and Drug Administration (FDA), was medically prescribed and obtained through medical supply outlets, and was thought by many medical professionals to benefit sufferers of diabetes, arthritis, corns, hammertoes, lupus, bunions, neuromas, neuropathy, scleroderma, etc. The newly submitted sample is identified as an “orthopaedic shoe” and described as the “Pedors” shoe. It is said to be marketed to, and fitted solely by, the medical community and is packaged as such. The Pedors shoe appears to conform substantially to the description of the Gripper shoe above. It is stated, however, that the Pedors shoe is quite distinct in design from the original Gripper shoe, having extra depth in the toe, a removable inner sole, a stronger sole plate, and more support on the lateral and medial counters and heel cup. The shoe is available in full and half sizes and in three widths, and is said to comply with the guidelines given by the “Therapeutic Shoe Bill.” The current request for reconsideration is based upon your standing as the initial distributor, specification developer, and owner of the Grippers and Pedors products. ISSUE: Whether the shoes are 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 -3- 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, HTSUSA, covers “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials.” 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 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. With respect to the “Gripper” shoe classified in HQ 960466, we find that essentially no new evidence has been submitted upon which a change in that shoe’s classification may be based. HQ 960466 is therefore affirmed. We further find that the Pedors shoes (like the Gripper) are footwear designed, intended, and prescribed, for persons suffering foot discomfort from various diseases, disorders, and deformities. The purpose of such shoes, however, is to provide comfort to feet already afflicted with abnormalities, and they are not principally used to “prevent or correct” deformities. The uppers of the shoes are soft and, despite the presence in the Pedors of a stronger sole plate, the soles are flexible, not rigid (as are the soles of post-operative orthopedic shoes). As the EN also state, articles that are properly classified under -4- heading 9021, HTSUSA, are “made to measure,” that being, constructed in accordance with measurements taken on the one intended to wear the article. The Pedors are ready to wear, are sold in pairs, and are available in most sizes. Such footwear is not properly classified as orthopedic appliances under heading 9021. As you may be aware, 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. The essential characteristics and features of the “Pedors” shoes are not similar to those of the post-operative shoes discussed above. Although the shoes are listed as medical devices with the FDA, and their specification developer and distributor is registered with the Department of Health and Human Services, the Public Health Service and the FDA, Customs classifies goods in accordance with the HTSUSA, not by the attributes or significance that other government agencies or departments assign to imported products or their development for purposes other than tariff classification. In light of the above analysis, we find that the Pedors shoes are classified in subheading 6404.19.80, HTSUSA. HOLDING: The shoes described as “Pedors” are classified in subheading 6404.19.80, HTSUSA, the provision for “Footwear with outer soles of rubber, plastics...and uppers of textile materials: Footwear -5- 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. HQ 960466, issued February 18, 1998, is hereby affirmed. Sincerely, John Durant, Director Commercial Rulings Division