CLA-2 RR:CR:TE 960967 MBG
John S. Rode, Esquire
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Tariff Classification of Arthritis Relief Gloves; Reconsideration of NY 816073
Dear Mr. Rode:
This is in reply to your request on behalf of Becton Dickinson & Company,
asking Customs to reconsider New York Ruling Letter (NY) 816073, dated November
14, 1996. That ruling concerned the tariff classification of “arthritis relief gloves”
produced in Thailand. For the reasons set out below, we affirm the holding in
NY 816073.
FACTS:
The merchandise under reconsideration is a pair of unlined gloves
constructed from 80 percent nylon and 20 percent spandex knit fabric. Each glove
has four fingers with fourchettes, an inserted thumb, and a one-inch side vent. The
gloves are packaged in a paperboard container that is labeled on the front “Arthritis
Relief Gloves” and contains the following beneath that name:
Therapeutic:
Worn while sleeping, provides relief from
symptoms of Arthritis in hands
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? Helps relieve pain, stiffness and swelling
? Increases morning strength and flexibility
? Lightweight LYCRA® spandex for extra comfort
On the back of the container there is language to the effect that while
sleeping the gloves provide compression and warmth which reduces pain and
stiffening in the hands and gives greater flexibility and grip strength.
The gloves were classified under subheading 6116.93.9400, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides for knit gloves
of synthetic fibers, with fourchettes. The importer believes that the gloves should be
classified either under the provision for other articles specifically designed for the
use or benefit of physically handicapped persons, in subheading 9817.00.96,
HTSUSA, or, alternatively, under the provision for other orthopedic appliances, in
subheading 9021.19.85, HTSUSA.
ISSUE:
The issue presented is whether the subject gloves are properly classifiable
under subheading 6116.93.9400, HTSUSA, or whether the appropriate subheading is
9817.00.96, HTSUSA, as articles specifically designed for handicapped persons. As
an alternative to subheading is 9817.00.96, it is claimed that subheading
9021.19.85, HTSUSA, which provides for orthopedic appliances for preventing bodily
deformities, is applicable.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational,
Scientific, and Cultural Materials Act of 1982 established duty-free treatment for
certain articles to be used by the handicapped. Presidential Proclamation 5978 and
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for
the implementation of the Nairobi Protocol by creating subheadings 9817.00.92,
9817.00.94, and 9817.99.96, HTSUSA. These tariff provisions specifically provide
for duty-free treatment for articles specially designed or adapted for the use or
benefit of the blind or other physically or mentally handicapped persons.
Subheading 9817.00.96, HTSUSA, specifically provides for articles specially
designed for the use or benefit of physically or mentally handicapped persons other
than the blind.
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U.S. Note 4, Subchapter XVII, Chapter 98, HTSUSA, provides as follows:
(a) For purposes of subheadings 9817.00.92, 9817.0094, and 9817.00.96, the
term “blind or other physically or mentally handicapped persons” includes any
person suffering from a permanent or chronic physical or mental impairment
which substantially limits one or more major life activities, such as caring for
one’s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, or working.
(b) Subheadings 9817.00.92, 9817.00.94, and 9817.00.96 do not cover--
(I) articles for acute or transient disability;
* * *
(iii) therapeutic and diagnostic articles; or
* * *
In Richards Medical Co. v.. US, 720 F. Supp. 998 (CIT 1989), aff’d, 910 F. 2d
828 (Fed. Cir. 1990), the CIT held that “therapeutic” articles are those that are used
to heal or cure the condition causing the handicap, as opposed to those articles
which are designed to compensate for, or adapt to, the handicapped condition. The
Court of Appeals for the Federal Circuit, in affirming the decision of the lower,
recognized that the word therapeutic has both broad and narrow interpretations.
910 F.2d at 830. In determining the intent given by Congress to the term
“therapeutic”, the Court of Appeals reasoned that the legislative history “cut against
construing this term broadly to include alleviate or palliative treatments, i.e.
treatments which help the handicapped person live with his or her handicapped
condition. . .[I]nclusion of these treatments would be inconsistent with the
legislative history.” Id. This position was followed in Travenol Laboratories, Inc. V.
United States, 17 CIT 69 (1993), and Nobelpharma v. United States, 955 F. Supp.
1491 (CIT 1997).
Considering that the merchandise in question does not provide any cure for
arthritis but serves as a means of helping those suffering from arthritis to live with
the disease, the gloves do not meet the court’s definition of “therapeutic” and are,
therefore, not excluded from the applicability of subheading 9817.00.96.
The language of the heading under which subheading 9817.00.96 appears
requires that articles classifiable thereunder must be “specially designed or adapted”
for the benefit of mentally or physically handicapped persons.
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Assuming, arguendo, that Headquarters Ruling (HQ) 556090, dated November
8, 1991, provides that individuals who suffer significantly from arthritis are persons
who have an impairment which substantially limits one or more of major life activities
discussed in U.S. note 4(a), then individuals who benefit from the arthritis relief
gloves are physically handicapped within the meaning of U.S. Note 4(a).
While the legislative history of subheading 9817.00.96 discusses that the
design, modification, or adaptation of an article must significant enough in order
for the article to be used by handicapped individuals, Congress established no
specific definition of these terms. Senate Report (Finance Committee) No. 97-564, September 21, 1982). See also, Headquarters Ruling Letter (HQ) 951004 dated March 3, 1992. Since it is difficult to establish a clear definition of what is “specially designed or adapted,” various factors must be utilized on a case-by-case basis to determine whether a given article is “specially designed or adapted” within the meaning of this statute.
In Treasury Decision (TD) 92-77 (26 Cust. Bull. 1, (August 26, 1992)), Customs addressed the implementation of the duty-free provisions of the Nairobi Protocol, and discussed the eligibility requirements for duty-free treatment. With regard to whether an article has been “specially designed or adapted” for the handicapped, Customs stated the following:
A primary factor to be considered concerns the physical properties of the
article itself, i.e., whether the article is easily distinguishable, by properties of
design and the corresponding use specific to this unique design from
articles useful to nonhandicapped individuals. If an article is solely dedicated
to use by the handicapped, e.g. pacemakers or hearing aids, then this is
conclusive evidence that the articles are “specially designed or adapted” for
the handicapped for purposes of the Nairobi Protocol.
Thus, if an article is solely dedicated to use by the handicapped, it is
Customs position that this would be conclusive evidence that the item is “specifically
designed or adapted” for the handicapped for purposes of the Nairobi Protocol. The
Court of International Trade used similar reasoning in Richards Medical, supra, and
held that instruments used to implant the hip prosthetic device at issue in that case,
are “specifically and exclusively designed for prosthetic implantation and have no
other apparent use.”
According to the submission received on behalf of the importer, the gloves
were specifically designed to benefit persons suffering from arthritis. The instant
gloves are “made form a knit fabric composed of 80 percent nylon and 20 percent
spandex, and are constructed to provide both compression and warmth to the
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fingers.” In this regard, in order to compare the instant gloves with gloves being
sold at retail to the general public, a member of my staff visited two department
stores (J.C. Penney and Co. and Lord and Taylor). Each store sold ISOTONER®
gloves substantially similar in both design and material (19 percent spandex vs. 20
percent spandex in the instant gloves). Accordingly, we are unable to conclude that
the gloves under consideration have any design feature which distinguishes them
from ordinary gloves used by the general public.
Considering the above, the gloves at issue are not “specifically designed or
adapted” for the handicapped, nor do they appear to provide any unique
compensatory advantages. (See HQ 556449). Accordingly, the subject gloves are
not classifiable in subheading 9817.00.96.
It is alternatively claimed that the arthritic gloves are classifiable in
subheading 9021.19.85, HTSUSA, as orthopedic appliances for prevent bodily
deformities. The pertinent portions of heading 9021 follow:
9021 Orthopedic appliances, including crutches,
Surgical belts and trusses; splints an 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:
Artificial joints and other orthopedic or
fracture appliances; parts and
accessories thereof:
* * *
9021.19 Other:
* * *
9021.19.85 00 Other............................................................
The Harmonized Commodity Description and Coding System, Explanatory Notes
(Ens), is the official interpretation of the HTSUSA at the international level (for the 4
digit headings and the 6 digit subheadings). EN 1(b) to Chapter 90 states:
1.-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, maternity belts, thoracic
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support bandages, abdominal support bandages, supports for joints
or muscles)(Section XI).
The Explanatory Notes to Heading 9021, HTSUSA, state the following:
(I) ORTHOPAEDIC APPLIANCES
These are appliances for:
(I)Preventing or correcting bodily deformities; or
ii) Supporting or holding organs following an illness or operation.
In HQ 087213, dated September 18, 1990, it was stated:
[U]nder the Tariff Schedules of the United States (TSUS), Customs has
maintained the position that orthopedic appliances are generally used in the
medical treatment of a physical ailment and are body supports which are worn
on the person. See Headquarters Ruling Letter (HRL) 058883, dated March
23, 1979 9 (air cushion designed for back support classified under the provision
for pneumatic mattresses and other inflatable articles, not specifically provided
for, in item 790.39, TSUS). Furthermore, orthopedic appliances are usually
obtained at the direction of a physician at certain medical supply outlets which
have personnel specially trained to measure and fit the appliance for the
individual patient. Articles which are available in ordinary retail stores for use
in alleviating sprains or strains are not, for purposes of tariff classification,
considered orthopedic devices. See HRL 058970, dated May 7, 1978
(inflatable air cushion designed for back support classified under the provision
for pneumatic mattresses and other inflatable articles, not specifically provided
for, in item 790.39, TSUS).
Further, it is our view that the wording of the tariff precludes the instant merchandise from classification as an “orthopedic appliance.” The references to orthopedic appliances in the tariff name such articles as crutches, surgical belts, trusses, artificial joints, and other fracture appliances, not articles commonly worn on the person. In accord with the rule of
ejusdem generis, the instant gloves are not considered orthopedic appliances for tariff purposes because they do not fall within the same class or kind of goods as those specifically named.
We also note 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 committee determined that the “Technol Post-Op” shoe was precluded from classification in heading 9021, HS because it was mass-produced.
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For the reasons set out above, the subject gloves are not “orthopedic appliances” for tariff purposes.
HOLDING:
The arthritic relief gloves were properly classified in NY 816073 under subheading 6116.93.9400, HTSUSA, which provides for other crocheted gloves with fourchettes. The gloves are dutiable at the general column one rate of 19.3 percent ad valorem. The applicable textile restraint category is 631.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
The designated textile and apparel category may be subdivided into parts. If so, visa
and quota requirements applicable to the subject merchandise may be affected. Since part
categories are the result of international bilateral agreements which are subject to frequent
renegotiations and changes, to obtain the most current information available, we suggest
that you check, close to the time of shipment, the Status Report On Current Import Quotas
(Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for
inspection at our local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division