• HQ H135335
• Apr 18, 2011

• Type : Classification • HTSUS : 6116.10.44
•  Related:   55401; 100033; G89466; 35127; 35128; E82025; C88424; B88008; 958190; 965234; 967233; 966854; N015398; H025103   

CLA-2 OT:RR:CTF:TCM H135335 CkG

Port Director
U.S. Customs and Border Protection
Port of Minneapolis
330 2nd Ave. SouthSuite 560Minneapolis, MN 55401

RE: Application for Further Review of Protest No. 3501-10-100033; classification of carpal tunnel gloves

Dear Port Director: This is in response to the Application for Further Review of Protest No. 3501-10-100033 filed on behalf of Swede-O, Inc. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of two models of carpal tunnel gloves in heading 6116, HTSUS, as knit gloves.

The subject merchandise was entered on July 21, 2009, at the Port of Minneapolis. CBP liquidated the entries on January 04, 2010, in heading 6116, HTSUS, as knitted gloves. Protestant claims classification in heading 9021, HTSUS, as orthopedic appliances.

FACTS:

The two models of Swede-O’s Thermoskin Carpal Tunnel Gloves at issue (8*197-left and 8*198-right) are tight-fitting slip-on gloves constructed of neoprene rubber sandwiched between an outer layer of knitted nylon fabric and an inner layer of knitted polyester fabric. The gloves feature openings at the top of the fingers which allow the fingertips to be exposed when worn, as well as an adjustable strap at the wrist. The gloves are advertised for the treatment or prevention of Carpal Tunnel Syndrome. As such they are designed to provide support for weak or injured wrists. The gloves contain an opening in which a metal splint (made in the U.S.) is to be inserted after importation to prevent wrist movements that can cause Carpal Tunnel syndrome. The gloves are further asserted to provide the benefit of heat therapy via the Trioxon® lining, which is stated to create a microclimate that maintains elevated skin temperature while still allowing the skin to ventilate.

A sample was provided for our examination, with the metal insert included.

ISSUE:

Whether the Swede-o Thermoskin Carpal Tunnel Gloves are classified as knitted gloves in heading 6116, HTSUS, or as orthopedic appliances in heading 9021, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).

Further Review of Protest No. 3501-2010-100033 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a prior CBP ruling with respect to the same or substantially similar merchandise, specifically New York Ruling Letter (NY) G89466, dated April 12, 2001.

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.

The HTSUS provisions under consideration are as follows:

6116: Gloves, mittens and mitts, knitted or crocheted:

6116.10: Impregnated, coated or covered with plastics or rubber:

Other:

Without fourchettes: Cut and sewn from preexisting machine knit fabric that is impregnated, coated or covered with plastics or rubber:

Other:

6116.10.44: Containing over 50 percent by weight of plastics or rubber . .

*      *               *           *   9021: 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:

9021.10: Orthopedic or fracture appliances, and parts and accessories thereof:

9021.10.00: Other:

*      *               *           *   Note 2 to Chapter 61 provides, in pertinent part, as follows:

2. This chapter does not cover: … (c) Orthopedic appliances, surgical belts, trusses or the like (heading 9021).

Note 1 to Chapter 90 provides, in pertinent part:

This chapter does not cover: … (b) Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles) (section XI);

Note 2 to Chapter 90 provides, in pertinent part:

Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings;

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind; …

Note 6 to Chapter 90 provides, in pertinent part:

6. For the purposes of heading 9021, the expression “orthopedic appliances” means appliances for:

(a) Preventing or correcting bodily deformities; or (b) Supporting or holding parts of the body following an illness, operation or injury.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs 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).

EN 90.21 provides, in pertinent part, as follows:

(I) ORTHOPAEDIC APPLIANCES   Orthopaedic appliances are defined in Note 6 to this Chapter.  These are appliances for:   -    Preventing or correcting bodily deformities;  or   -    Supporting or holding parts of the body following an illness, operation or injury.   They include :  …       (10)  Appliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and belts (including certain supporting belts) characterised by :         (a)      Special pads, springs, etc., adjustable to fit the patient.         (b)      The materials of which they are made (leather, metal, plastics, etc.); or   The presence of reinforced parts, rigid pieces of fabric or bands of various widths.               The special design of these articles for a particular orthopaedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold.  …   The heading does not include : ...    (c)   Supporting belts or other support articles of the kind referred to in Note 1 (b) to this Chapter, e.g., prenatal or maternity belts (generally heading 62.12 or 63.07).   *      *               *           *   Protestant claims classification in heading 9021, HTSUS, as orthopedic appliances. Note 6 to Chapter 90 defines “orthopedic appliances” as appliances for “[p]reventing or correcting bodily deformities,” or “[s]upporting or holding parts of the body following an illness, operation or injury.” The Swede-O Thermoskin Carpal Tunnel Gloves are intended for the prevention of deformities in the tendons and nerves of the wrist due to carpal tunnel syndrome, or support of the wrist for treatment of pain and injury due to carpal tunnel syndrome. The gloves are designed to restrict motion of the wrist, and provide compression and heat for injured tissue. As noted by CBP in NY E82025, dated July 8, 1999, with regard to a similar brace, “Severe tendonitis and carpal tunnel cases can produce noticeable distortions in the way the wrist is normally carried. Especially due to the excellent support given for downward motion, someone who had seriously injured one of his/her wrists could readily use this item as protection in everyday life.”

Swede-O describes itself on its website as “specializing in innovative orthopedic supports for the prevention, treatment and rehabilitation of sports injuries, arthritis, RSI, soft tissue injuries and more.” Protestant asserts that these items are only sold to medical clinics. Furthermore, the Protestant’s website indicates that the effects of the instant gloves on patients suffering from carpal tunnel syndrome have been studied and shown to relieve pain. While CBP makes no assertion as to the effectiveness of the instant products, such studies at least support the Protestant’s claim that the gloves are designed and used as a therapeutic/orthopaedic appliance for the treatment or prevention of pain and injury due to carpal tunnel syndrome. Protestant also offers a letter from MedSearch Legal Nurse Consultants, an organization of registered nurses which conducts healthcare research for attorneys, physicians, and insurance companies, which opines that the Medicare billing code for the Thermoskin Carpal Tunnel Gloves is L3908, which corresponds to wrist and hand orthosis.

CBP has classified similar wrist braces in heading 9021, HTSUS. See NY E82025, supra. See also NY N015398, dated August 31, 2007; NY C88424, dated June 5, 1998; NY B88008, dated August 19, 1997; and HQ 958190, dated September 5, 1995, all of which feature similar rigid splints to immobilize the wrist. The only apparent distinguishing feature of the Thermoskin gloves is that they extend past the palm to partially cover the fingers. Otherwise, they closely resemble wrist braces CBP has classified in heading 9021, HTSUS. In contrast, CBP has classified similar joint supports lacking rigid splints as textile articles of Section XI, on the basis that they did not immobilize the joint as contemplated by the EN. See e.g., HQ 965234, dated December 5, 2001.

Based on the above factors, we agree that the Thermoskin Carpal Tunnel gloves, as sold, would be classifiable in heading 9021, HTSUS, as orthopedic appliances. However, merchandise is classified based on its condition as imported. See United States v. Citroen, 223 U.S. 407 (1912). As imported, the gloves lack the rigid metal splint which immobilizes the wrist. As noted above, CBP considers immobilization of the joint to be a necessary characteristic of orthopedic joint supports/braces classifiable in heading 9021. See EN 90.21(1). The instant entry thus cannot be classified in heading 9021, because the gloves do not immobilize the wrist without the splint. Furthermore, in their condition as imported, the gloves are excluded from Chapter 90 by virtue of Note 1(b), as the effect of the Thermoskin gloves on the wrist and hand, without the metal splints, is almost entirely derived from the elasticity of the material.

The Thermoskin gloves are eo nomine provided for in heading 6116, HTSUS, as knitted gloves. They are not excluded from that heading on the basis of Note 2 to Chapter 61, as they are not classifiable as orthopedic appliances of heading 9021. Protestant notes that heading 9021, HTSUS, also provides for parts and accessories of orthopedic appliances. Note 2(b) to Chapter 90 further specifies that parts and accessories, if suitable for use solely or principally with an apparatus of Chapter 90, are to be classified with said apparatus. However, Additional U.S. Rule of Interpretation 1(c) also provides that, in the absence of special language or context, a provision for parts of an article cannot prevail over a specific provision for such part or accessory. Heading 6116, HTSUS, constitutes such a specific provision. While Note 2 to Chapter 90 may constitute a special context, it is the position of CBP that such special language or context only precludes the application of Additional U.S. Rule 1(c), HTSUS where the competing provisions at issue are both within the same section or Chapter (depending on whether the “special language or context” arises in the context of a section note or chapter note). See Sharp Microelectronics Technology, Inc. v. United States, 122 F.3d 1446, 1453 (Fed. Cir. 1997) ("Additional U.S. Rule of Interpretation 1(c) further provides a tool to assist in finding the correct classification home for articles, such as those in issue, for which two headings compete"). See also HQ 967233, dated February 18, 2005; HQ 966854, dated January 16, 2004; HQ H025103, dated February 6, 2009. In this case, the competing provisions are in different Chapters. Therefore, even if we considered the gloves, in the absence of the metal splints, to be a part of an orthopedic appliance, heading 6116 would still prevail on the basis of Additional U.S. Rule 1(c).

Protestant claims that liquidation of the instant entry in heading 6116, HTSUS, is inconsistent with New York Ruling Letter (NY) G89466, dated April 12, 2001, which classified similar Thermoskin wrist braces in heading 9021, HTSUS. Our decision in NY G89466 was based on the samples before us, which, as noted in that ruling, effectively immobilized the wrist. No mention is made in the ruling of the rigid splints being imported separately; that information was not provided to CBP at the time. NY G89466 is therefore consistent with our current decision to classify the instant entry of Thermoskin gloves in heading 6116, HTSUS.

HOLDING:

By application of GRI 1, the instant entry of Swede-O Thermoskin Carpal Tunnel Gloves is classified in heading 6116, HTSUS, specifically in subheading 6116.10.44, which provides for “Gloves, mittens and mitts, knitted or crocheted: Impregnated, coated or covered with plastics or rubber: Other: Without fourchettes: Cut and sewn from preexisting machine knit fabric that is impregnated, coated or covered with plastics or rubber: Other: Containing over 50 percent by weight of plastics or rubber.” The 2010 general, column one rate of duty is 9.9% ad valorem.

You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division