CLA-2 OT: RR: CTF: TCM H266607 ERB
Ms. Linda Schroeder
L.A.D. Global Enterprises, Inc.
1309 South Fountain Drive
Olathe, KS 66061
Dear Ms. Schroeder:
This letter is in response to your request on behalf of L.A.D. Global Enterprises, Inc. (L.A.D.) to U.S. Customs and Border Protection (CBP), National Commodity Specialist Division (NCSD) for a binding ruling on the tariff classification of the “UNASling” under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was forwarded to this office by NCSD for a response. One sample was sent to this office and additional information provided via telephone on July 29, 2015 were considered for this analysis.
FACTS:
The subject merchandise, called a “UNAsling”, is composed of one strap, constructed of a rectangular non-woven polypropylene fabric, approximately 37 inches long by 4 inches wide. The ends are finished by sewing, using cotton thread, and the edges are bound by a narrow woven polyester fabric which extends beyond the ends of the nonwoven fabric to form looped handles approximately one foot in length on each end (54.5” or 138.43 cm, by 4” or 10.16 cm). The middle of the strap contains a small amount of nonwoven expanded polyethylene (PE) foam padding inside. The UNAsling weighs 130 grams. Packaged together with the strap is a sheet of blue nonwoven PE. The two articles are contained in a single package that states on the exterior: “UNASling Universal Mobile Floor Based Lift, Sling Sterile. Single Use Only.” The packaging states that the material is 100% polypropylene.
The slings are for use during bariatric surgery. According to promotional material contained in your submission, the sling, “Allows [the] lift to support [the] weight of [the] patient rather then [sic] the surgical team[,] thus reducing and preventing musculoskeletal injury to staff during preparation of limbs and other bariatric surgeries.” In other words, when an obese patient is being prepared for bariatric surgery, the slings support the patient’s limbs in order to move the limb from one place to another, because the limbs have increased skin folds and are larger and heavier than average body parts. The sling is stated to be tested by an independent laboratory rated to 440 pounds.
ISSUE:
Whether a sling comprised of nonwoven polyethylene fabric, expanded polyethylene foam and polyester, is classified as a textile for technical use under heading 5911, HTSUS, as an other made up article under heading 6307, HTSUS, as a part of a lifting device, classified in the corollary heading 8431, HTSUS, or whether it is an orthopedic appliance of 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 GRIs may then be applied.
The HTSUS headings under consideration are the following:
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
6307 Other made up articles, including dress patterns:
8431 Parts suitable for use solely or principally with the machinery of headings 8425 to 8430:
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:
Note 7 to Chapter 59 states the following, in its entirety:
Heading 5911 applies to the following goods, which do not fall in any other heading of Section XI:
(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:
Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes, including narrow fabrics made of velvet impregnated with rubber, for covering weaving spindles (weaving beams);
Bolting cloth;
Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;
Flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes;
Textile fabric reinforced with metal, of a kid used for technical purposes;
Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
Note 7 to Section XI, which covers Chapter 63, states the following:
For the purposes of this section, the expression “made up” means:
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Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
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Note 1(e) to Section XVI, which covers Chapter 84, states the following:
This section does not cover:
(e) Transmission or conveyor belts of belting of textile material (heading 5910) or other articles of textile material for technical uses (heading 5911);
Note 1(a) to Chapter 90 states:
This chapter does not cover:
Articles of a kind used in machines, appliances or for other technical uses, of vulcanized rubber other than hard rubber (heading 4016), of leather or of composition leather (heading 4205) or of textile material (heading 5911).
Note 6 to Chapter 90 states:
For the purposes of heading 9021, the expression “orthopedic appliances” means appliances for:
Preventing or correcting bodily deformities; or
Supporting or holding parts of the body following an illness, operation or injury.
Orthopedic appliances include footwear and special insoles designed to correct orthopedic conditions, provided that they are either (1) made to measure or (2) mass-produced, entered singly and not in pairs and designed to fit either foot equally.
The Explanatory Notes (ENs) 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 59.11 states the following, in relevant part:
The textile products and articles of this heading present particular characteristics which identify them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or parts of tools.
The heading includes, in particular, those textile articles which are excluded from other headings and directed to heading 59.11 by any specific provision of the Nomenclature (for example, Note 1(e) to Section XVI). …
TEXTILE FABRICS AND OTHER TEXTILE PRODUCTS, FOR TECHNICAL USES, IN THE PIECE, CUT TO LENGTH OR SIMPLY CUT TO RECTANGULAR (INCLUDING SQUARE) SHAPE
Provided they do not have the character of the products of headings 59.08 or 59.10, these products are classified here (and not in any other heading of Section XI), whether in the piece, cut to length or simply cut to rectangular (including square) shape. This group covers only the textile fabrics and other textile products as defined in Note 7(a) to the Chapter, and listed at (1) to (6) below.
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(B) TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES
All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7 (b) to the Chapter); for example :
(1) Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.), for example, straining cloths for oil presses made by assembly of several pieces of fabric; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing.
(2) Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos cement) (excluding machinery belts of heading 59.10).
(3) Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics and felts of a kind used in paper making or similar machines referred to in (2) above.
(4) Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84).
(5) Discs, sleeves and pads for shoe polishing and other machines.
(6) Textile bags for oil presses.
(7) Cords cut to length, with knots, loops, or metal or glass eyelets, for use on Jacquard or other looms.
(8) Loom pickers.
(9) Bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc.
The textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile.
The EN 63.07 states the following, in relevant part:
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.
The EN 84.31 states the following, in relevant part:
This heading also excludes:
(b) Slings (Section XI or XV)
Section XI referenced immediately above covers textiles and textile articles, and includes Chapter 59. Section XV covers base metals and articles of base metals.
The EN 90.21 states the following, in relevant part:
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:
Appliances for hip diseases (coxalgia, etc.).
Humerus splints (to enable use of an arm after resection), (extension splints).
Appliances for the jaw.
Traction, etc. appliances for the fingers.
Appliances for treating Pott’s disease (straightening head and spine).
Orthopaedic 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.
Dental appliances for correcting deformities of the teeth (braces, rings, etc.)
Orthopaedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.).
Trusses (inguinal, crural, umbilical, etc., trusses) and rupture appliances.
Appliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and belts (including certain supporting belts) characterized by:
Special pads, springs, etc., adjustable to fit the patient.
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.
Orthopaedic suspenders (other than simple suspenders of knitted, netted or crocheted materials, etc.).
Myriad exclusionary notes and exclusionary language are relevant for this analysis. If the subject UNASling is classified as a textile for technical use of heading 5911, HTSUS, then it is excluded from classification in Section XVI, which covers Chapter 84, pursuant to Note 1(e) to Section XVI. Similarly, if it is classified in heading 5911, HTSUS, it is excluded from classification in Chapter 90, pursuant to Note 1(a) to Chapter 90. If the goods are considered slings then they are excluded from heading 8431, HTSUS, pursuant to the EN 84.31 subsection (b), which furthermore directs classification to Section XI, which provides for textiles. Finally, heading 6307, HTSUS, is a basket provision, and classification there is only appropriate if the merchandise is not included elsewhere more specifically in the Nomenclature, pursuant to the EN 63.07. Therefore, our analysis will start first, with heading 5911, HTSUS.
Pursuant to the tariff text itself, products classified in heading 5911, HTSUS, must satisfy Note 7. Only products “specified in Note 7 to this chapter” are classified therein. See Note 7 to Chapter 59. Note 7 has two parts, subsections (a) and (b).
Goods classified in heading 5911, pursuant to Note 7(a) are “textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of heading 5908 to 5910).” See Note 7(a). The instant merchandise, however, is not “textile products in the piece, cut to length or simply cut to rectangular (including square) shapes…” The subject merchandise is a finished good, imported in its condition, ready for immediate use. Therefore, it is not classified in heading 5911, HTSUS, pursuant to Note 7(a) because it does not satisfy the specific criteria of Note 7(a).
Note 7(b) to Chapter 59 provides for finished textile articles, however, Note 7(b) contains its own limiting language as to what is classified therein. Note 7(b) provides for textile articles of a kind used for technical purposes. The Note provides examples, such as textile fabrics which are endless or fitting with linking devices, of a kind used in papermaking or “similar machines”. See Note 7(b). Examples of what is meant by “similar machines” are also provided, and therein is listed pulp or asbestos-cement, gaskets, washers, polishing discs and other machinery parts.
The EN to 59.11, subsection (B) explains what is meant by machines which are similar to those used in papermaking, what is considered other machinery parts, and lists the types of textile articles that are the kind that are considered those used for technical purposes. The EN 59.11 lists textiles which feature characteristics or properties making them uniquely suited for a particular job, such as oil presses, paper-making machines, gaskets or diaphragms for pumps or motors, discs, sleeves and pads for shoe polishing, textile bags for oil presses, cords cut to length for Jacquard looms, loom pickers, vacuum cleaner or filter bags, etc. See EN 59.11 (B) (1) through (9). The textile that comprises the UNASling is nonwoven expanded polyethylene, filled in some places with a polyethylene foam. This is not one of the technical fabrics listed, nor is it similar in function to the other enumerated textiles. A stationary stand which holds the limb contained in the sling is not similar to any of the machinery which is listed, such as vacuum cleaners, air filtration plants, and engines. Therefore, it is not classified in heading 5911, HTSUS, pursuant to Note 7(b) because it does not satisfy the specific criteria of Note 7(b).
Moreover, the subject slings are not fabric for a technical use of heading 5911, HTSUS, and the exclusionary language found in Note 1(e) to Chapter 84, and Note 1(a) to Chapter 90, is inapplicable.
It is worth noting that the subject slings are distinguishable in meaningful ways from the slings at issue in New York Ruling Letter (NY) N014366, dated August 16, 2007, and NY N025619, dated April 15, 2008, because the merchandise at issue there satisfied the fabric requirement enumerated in Note 7(a), but more importantly, they were slings used directly in connection with a machine. This constitutes a technical use, and these goods are properly classified in subheading 5911.90, HTSUS.
Our analysis next turns to heading 9021, HTSUS. To determine whether the slings are classified in heading 9021, we first consider whether they are “orthopedic appliances” within the meaning of Note 6 to Chapter 90, and as the heading is understood pursuant to the ENs. According to Taber’s Cyclopedic Medical Dictionary, Edition 15, 1985, the term “orthopedic” is defined as, “concerning orthopedics; prevention or correction of deformities.” A deformity is defined as, “an alteration in the natural form of a part or organ. Distortion of any part or general disfigurement of the body. It may be acquired or congenital. If present after injury, usually implies the presence of fracture, dislocation, or both. May be due to extensive swelling, extravasation of blood or rupture of muscles.”
The subject slings do not prevent or correct bodily deformities, nor is the sling used to support or hold parts of the body following an illness, operation or injury, within the meaning of Note 6 to Chapter 90, HTSUS. Rather, Doctors or medical professionals place an obese limb in the subject sling temporarily, prior to surgery, in order to suspend and move the very heavy limb so that the medical staff does not injure themselves trying to move the limb. Similarly, this function is not akin to any of the exemplars listed in the EN 90.21, which explains the expression “orthopedic appliances,” found in Note 6 to Chapter 90. The slings are not analogous to splints or other fracture appliances, insofar as they are not objects that immobilize an injured body part, like a cast. Nor are they designed to keep a limb in a particular position, akin to orthopedic traction which is a set of mechanisms for straightening broken bones or relieving pressure on the spine and skeletal system. The UNASling merely moves an obese limb from one flat surface to another, or suspends it during a procedure. It does not function as any part of the healing process for the limb itself because the limb is not injured or deformed. Therefore, the UNASling is not described as an orthopedic appliance of chapter 90.
Additionally, CBP has consistently held that only “devices” designed to immobilize injured body parts are classified in heading 9021, HTSUS. See HQ 958190, dated September 5, 1995 (classifying a neoprene wrist support containing permanently inserted, rigid plastic support bars that were designed to immobilize the wrist in order to relieve tendinitis and prevent recurrence of carpal tunnel syndrome in heading 9021, HTSUS); see also NY N235435, dated December 12, 2012 (classifying a knee device capable of implantation into the body, with a range of motion hinge and a locking joint for positioning the knee in either a flexion or extension position in heading 9021, HTSUS); and see HQ 964317, dated May 1, 2001 (where Customs held a knee brace made of 90% neoprene and 10% nylon or polyester and elastic with two hinged metal braces is excluded from heading 9021, HTSUS, because it does not immobilize the knee). Therefore the subject merchandise is not provided for in heading 9021, HTSUS, as an “orthopedic appliance.”
Next, our analysis turns to heading 8431, HTSUS, which provides for parts suitable for use solely or principally with the machinery of heading 84.25 to 8430. Classification here, however, requires the condition precedent that the machines that the slings are designed to be a part of must fall into one of the enumerated headings, i.e. heading 8425, 8426, 8427, 8428, 8429, or 8430, HTSUS.
The instant slings can be hung and adjusted from any support, whether it be hooks from above, a stationary stand, or a stand with hooks. Pictures and information provided in L.A.D.’s ruling submission show that the subject slings are hung from a static supporting structure. The loops on the ends of the sling allow the user to adjust the height of the suspended limb. However, the supporting structure itself is not machinery which lifts, handles, loads or unloads. It is not a crane. If it were, the adjustable loops on the end of the slings would be superfluous. Lifting, handling, loading or unloading machinery are classified in heading 8428, HTSUS, so long as they are mechanical in nature (e.g. possesses a mechanical pulley system, or is capable of being hand-cranked). See EN 84.28 section (III) subsection (L) which provides for “Patient Lifts.” Goods of the remaining enumerated headings are inapplicable here. Therefore, as the supporting structure is not machinery of heading 8428, HTSUS, then a parts analysis of the subject slings is unnecessary. The subject slings are not parts suitable for use solely or principally with the machinery of headings 8425 to 9430, HTSUS, and as such, are not classified in the corollary parts provision in heading 8431, HTSUS.
Even assuming arguendo that the supporting structure was a lifting device of heading 8428, HTSUS, the EN 84.31 Note (b) specifically excludes slings, and directs that classification of the same should be in either Section XI, which provides for textiles, or Section XV, which provides for base metals, depending on the constituent material of the sling. Here, the relevant definition of “sling” is as follows: “1. A band of cloth that is tied around a person’s neck and used to support a broken or injured arm. See medical equipment. 2. A device consisting of a band, ropes, etc. for holding and lifting heavy objects.” Taken together, this describes the subject merchandise insofar as it is a textile product, shaped and sewn so as to temporarily suspend heavy limbs. As the slings are a textile we are directed to classify them accordingly in Section XI, pursuant to the EN 84.31(b).
Which brings us to the last heading at issue; heading 6307, HTSUS, provides for other made up articles. Heading 6307, HTSUS, is a basket provision appropriate for textile articles which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. See EN 63.07. The subject slings satisfy the seaming and finishing requirements outlined in Note 7 to Section XI, which covers Chapter 63 as a “made up article.” As it is not more specifically provided for elsewhere in the tariff, and it is described by the heading text, classification in heading 6307, HTSUS is appropriate.
HOLDING:
By application of GRI 1, the subject UNASling is classified in heading 6307, HTSUS. It is specifically provided for in subheading 6307.90.9889, which provides for, “Other made up articles, including dress patterns: Other: Other: Other: Other.” The column one rate of duty is 7% ad valorem.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial & Trade Facilitation Division