CLA-2 RR:CR:GC 961734 RTR

Ms. Kristin Dilwirth
Balance Systems, Inc.
18645 SW Farmington Road, Suite 283
Aloha, Oregon 97007

RE: Device for rehabilitation of carpal tunnel syndrome and repetitive stress injuries; NY C85565 revoked.

Dear Ms. Dilwirth:

This is in response to your April 24,1998, appeal of NY C85565, dated March 25, 1998, regarding the tariff classification of "Flextend" under the Harmonized Tariff Schedule of the United States (HTSUS), said to be a therapeutic product designed to assist in prevention and rehabilitation of carpal tunnel syndrome and other repetitive stress injuries of the fingers, hand, wrist and elbow.

FACTS:

According to your letter and supporting documents, "Flextend" is packaged in Hong Kong and China, and includes a U.S.-made rubber tubing component. It is registered with the U.S. Food & Drug Administration (FDA) as a Class 1 good (as described under "Law and Analysis" below). The merchandise is also registered with the U.S. Patent Office as a "medical device". It is prescribed by physicians to patients for the prevention and rehabilitation of carpal tunnel syndrome and repetitive stress injuries of the fingers, hand, wrist and elbow. You state that its patented design allows several specific carpal tunnel syndrome neutralizing exercises to be performed simultaneously. "Flextend" addresses carpal tunnel syndrome by equalizing the muscle imbalance ratio between the flexors and extensors, and stabilizing the finger, hand, wrist, and elbow joints, which are at the root of median-nerve compression within the carpal tunnel. The cost of "Flextend" is covered by most major insurance companies. Customs has liquidated the merchandise is subheading 9019.10.20, HTSUS.

ISSUE:

Whether a device for rehabilitation of carpal tunnel syndrome and repetitive stress injuries of fingers, hands, wrists and elbows is classifiable in subheading 9019.10.20, HTSUS, as a mechano-therapy appliance, or in subheading 9506.91.0030, HTSUS, as equipment for general physical exercise; other.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The provisions under consideration are as follows:

9019 Mechano-therapy appliance; massage apparatus; psychological aptitude testing apparatus; ozone therapy, oxygen therapy, aerosol therapy artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:

9019.10 Mechano-therapy appliances; massage apparatus; psychological aptitude testing apparatus; parts and accessories thereof:

9019.10.20 Mechano-therapy appliances; massage apparatus; parts and accessories thereof.

* * * *

9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof:

Other:

9506.91.00 Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof:

9506.91.0030 Other.

* * * *

21 C.F.R. 860.3(c)(1) provides in pertinent part:

"Class means one of three categories of regulatory control for medical devices defined below: Class 1 means the class of devices that are subject to only the general controls authorized by or under sections 501 (adulteration), 502 (misbrandings), 510 (registration), 516 (banned devices), 518 (notification and other remedies), 519 (records and reports), and 520 (general provisions) of the act. A device is in class I if (i) general controls are sufficient to provide reasonable assurance of the safety and effectiveness of the device, or (ii) there is sufficient information from which to determine that general controls are sufficient to provide reasonable assurance of the safety and effectiveness of the device or to establish special controls to provide such assurance, but the device is not life-supporting or life-sustaining of for a use which is of substantial importance in preventing impairment of human heath, and which does not present a potential unreasonable risk of injury."

In NY C85565, dated March 25, 1998, Customs classified "Flextend" in subheading 9506.91.0030, HTSUS, the provision for Articles and equipment for general physical exercise... Other.

You contend that "Flextend" is classifiable under subheading 9019.10.20, HTSUS, the provision for mechano-therapy appliances. In support of your appeal, you claim that "Flextend" was expressly designed for the treatment of carpal tunnel syndrome and other musculoskeletal disorders, and that it is recognized by physicians and other health care professionals, and by major insurance companies, as an effective tool for the rehabilitation and prevention of these ailments.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 90.19(I) states:

"These appliances are mainly used to treat diseases of the joints or muscles, by mechanical reproduction of various movements. It should be noted that such treatment is usually carried out under medical supervision; the apparatus of this heading should therefore be distinguished from the ordinary physical culture or medical exercising equipment designed for use in the home or in specially equipped premises..."

Accordingly, devices for ordinary physical culture or medical exercising equipment designed for use in the home or in specially equipped premises, such as a dumbbells or hand squeezing apparatus, are not classifiable in heading 9019, HTSUS, because they are not appliances mainly used to treat diseases of the joints or muscles, by mechanical reproduction of various movements.

"Flextend" is distinguishable from ordinary physical culture or medical exercising equipment for a variety of reasons. As discussed above, (1) it is specifically designed for prevention or rehabilitation of carpal tunnel syndrome and repetitive stress injuries of the finger, hand, wrist, and elbow; (2) it is sold to physicians and physical and occupational therapists; (3) its treatment is carried out under medical supervision; (4) it is sold as a prescription product, whose cost is covered by major insurance companies; and (5) it is classified by the F.D.A. as a "medical device." Thus, the merchandise is more specifically described in subheading 9019.10.20, HTSUS, which provides for mechano-therapy appliances, than in the basket provision 9506.91.0030, HTSUS, for articles and equipment for general physical exercise.

HOLDING:

Under the authority of GRI 1, "Flextend" is classifiable in subheading 9019.10.20, HTSUS, the provision for mechano-therapy appliances.

EFFECT ON OTHER RULINGS:

NY C85565, dated March 25, 1998, is revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division