- Type : • HTSUS :
-
Related:
30354
OT:RR:CTF:VS H131516 KSG
Port Director
U.S. Customs & Border Protection
4341 International Parkway
Atlanta GA 30354
Re: Protest # 1704-10-10013; subheading 9817.00.96; Compression hosiery, sleeves, and gauntlets
Dear Port Director:
This is in response to the Application for Further Review of Protest #1704-10-10013 submitted by counsel on behalf of Sigvaris, Inc., contesting the denial of preferential tariff treatment for imported compression hosiery, arm sleeves and gauntlets under subheading 9817.00.96, of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This case involves five entries filed between September 28, 2008 and December 24, 2008. Sigvaris Corporation imported various styles of compression hosiery with a compression between 15 and 20 millimeters (“mmHg”), one style of compression hosiery with a compression between 18 and 25 mmHg, compression arm sleeves and compression gauntlets (mittens or gloves).
Sigvaris protests the classification of the compression hosiery in subheadings 6115.12.20, HTSUS, and 6115.93.90, HTSUS. Further, Sigvaris protests the classification of the compression arm sleeves in subheading 6307.90.98, HTSUS, and the classification of compression gauntlets in subheading 6116.93.88, HTSUS.
Sigvaris imports seven styles of compression hosiery for both men and women in a variety of colors that are composed of nylon and spandex. The hosiery is designed to apply a specific amount of pressure (expressed in millimeters of mercury) at the ankle, providing a graduated compression. It is stated that the hosiery applies pressure around the outside of the leg with the maximum amount of pressure at the ankle, which helps the veins in the legs return blood to the heart more effectively. Sigvaris states that the use of compression support therapy may help prevent spider veins and varicose veins from forming or progressing. Six styles have a gradient compression between 15 and 20 mmHg. One style has a compression gradient of 18-25 mmHg. The packaging indicates the hosiery is recommended by doctors for tired, aching legs, swollen ankles and feet, post vein surgery, prevention of varicose veins during pregnancy and prevention of discomfort during long distance travel. Sigvaris states that all the products are designed for use in treating chronic venous insufficiency. Sigvaris also states that hosiery with higher compression (20 mmHg or more) are used for post-surgical treatment, superficial thrombophlebitis, post-sclerotherapy and relief of moderate and severe edemas. Hosiery of this compression is sold at drug stores and specialty stores and by companies that market to travelers.
Sigvaris also imports eight styles of compression armsleeves and gauntlets, three of which are composed of nylon and natural latex rubber and five of nylon and spandex. The armsleeves and gauntlets are designed to apply a specific amount of pressure at the palm of the hand. Sigvaris states that these products are used for prevention of fluid accumulation after decongestion is achieved in a lymphatic arm, for long-term management of lymphedema, post-mastectomy edema following radiation, trauma or post-operative and polyarthritis. The armsleeves are sold by companies that market to travelers as well as to patients with medical issues.
ISSUE:
Whether imported compression hosiery having a compression between 15 and 20 mmHg or 18-25 mmHg, compression arm sleeves, and compression gauntlets are eligible for duty-free treatment pursuant to subheading 9817.00.96, HTSUS?
LAW AND ANALYSIS:
Section 1121 of the Omnibus Trade and Competitiveness Act of 1988 and Presidential Proclamation 5978 provided for the implementation of the Nairobi Protocol by inserting permanent provisions, subheadings 9817.00.92, 9817.00.94, and 9817.00.96, into the HTSUS. These tariff provisions specifically state that “articles specifically designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons” are eligible for duty-free treatment.
U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS, states that 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.
U.S. Note 4(b), chapter 98, HTSUS, states that subheadings 9817.00.92, 9817.00.94 and 9817.00.96 do not cover (i) articles for acute or transient disability; (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (iii) therapeutic and diagnostic articles; or (iv) medicine or drugs.
Customs has previously held that a person suffering from little or no mobility and unable to walk is physically handicapped as that term is defined in U.S. Note 4(a) to Subchapter XVII. However, the compression hosiery involved in this case (compression between 15 and 20 mmHg or 18-25 mmHg), may be used by travelers, pregnant women, people with swollen, itchy or aching feet, or with varicose veins. It has not been shown that the compression hosiery described above are specifically designed for the use of a person who has little or no mobility.
Counsel argues that someone might be unable to perform a particular job that requires extensive standing for a long period of time, such as a store clerk. Counsel also states that the compression hosiery would “enable individuals to function - work, walk and move according to their normal daily routines.” Counsel cites to Sigvaris Corporation v. President of the Canada Border Services Agency, Canadian International Trade Tribunal, Appeal No. AP-2007-009, dated February 23, 2009. This foreign court case dealt with the eligibility of various styles and models of compression hosiery for preferential tariff treatment under Canadian law as goods “specifically designed to assist persons with disabilities in alleviating the effects of those disabilities.” The Canadian court found that the compression hosiery between 15 and 20 mmHg was specifically designed to assist persons with disabilities in alleviating the effects of those disabilities. Canadian law differs from U.S. law regarding this issue and also, foreign cases, while of interest, are not controlling in the U.S. We note that it appears that Canada has adopted a much more liberal definition of the term “disability” than the U.S. applies, including an examination of whether a condition affects the performance of an individual. This is not the standard set forth in U.S. law. In fact, U.S. Note 4(b) disallows articles for acute or transient disabilities. The Canadian court discusses a person who is too tired to stop at the grocery store after their work day as an example of a person with a disability. We do not find people who are unable to stand on their feet for an entire shift or too tired to stop at the grocery store on their way home from work to be unable to perform one or more major life activity (underline added). While the Canadian court case is interesting, it is not controlling and we do not find it persuasive. Counsel has failed to show that the compression hosiery described in this case would be used by persons 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. Accordingly, since U.S. Note 4(a) is not satisfied, the imported compression hosiery at issue in this case would not be eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS.
Next, we consider whether the compresson armsleeves and gauntlets are eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS. On its website, Sigvaris states that its compression arm sleeves are used for prevention of lymphedemas after surgery (such as mastectomy) or prevention of relapse after completion of decongestif therapy, post-operative and post-traumatic edema, “polyarthritis in certain cases,” and treatment for burns and extensive scarring. Another website shows compression arm sleeves that are sold to athletes. See www.customsportssleeves.com. As stated above, U.S. Note 4(b)(i), Chapter 98, HTSUS, does not allow goods to be classified in subheading 9817.00.96 if they are articles for acute or transient disability. Further; therapeutic and diagnostic articles are also not eligible for classification in subheading 9817.00.96, HTSUS. As described by Sigvaris, we find that the compression arm sleeves are principally used for acute or transient disabilities such as post-operative care. Further, it has not been shown that persons who use these products suffer 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.
Similarly, we find that the gauntlets are principally be used for acute or transient disabilities. Accordingly, since U.S. Notes 4(a) and (b) are not satisfied, the imported compression arm sleeves and gauntlets are not eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The protest in this case is denied. The compression hosiery that are the subject of this case, the compression sleeves and the gauntlets are not eligible for preferential tariff treatment under subheading 9817.00.96, HTSUS.
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 Regulations and Rulings of the Office of International Trade 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 & Trade Facilitation Division