CLA-2: OT:RR:CTF:TCM H194697 MG
Debra Reading
Now and New Comfort, Inc.
294 Mallard Point Unit C
Barrington, IL 60010
RE: Modification of NY N183637, dated October 4, 2011; tariff classification of a cast sock
Dear Ms. Reading:
This is in response to your letter, dated October 13, 2011, in which you have requested reconsideration on behalf of Now and New Comfort, Inc., of New York Ruling Letter (NY) N183637, dated October 4, 2011, as it pertains to the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the “BRRPAW FOOT CAST COVER” (“cast cover”) and the “BRRPAW THERMA-HEAT SLIPPER” (“heat slipper”). Samples of these two items were submitted with your request and are being returned. We have reviewed N183637 and find it to be in error with respect to the “BRRPAW FOOT CAST COVER” only. For the reasons set forth in this ruling, we are modifying N183637.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, a notice of proposed action was published on on December 23, 2015, in the Customs Bulletin, Vol. 49, No. 51. No comments were received.
FACTS:
NY N183637 states the following:
The submitted sample is Style CAST SOCK #2556 constructed of knit 100% polyester fleece fabric. The CAST SOCK is an ankle length sock. It is used to cover the foot while wearing a cast. The ankle portion of the sock has a hook and loop closure that secures the item to the wearer’s foot. The toe portion of the sock has a sewn in padded cushion.
The submitted sample is Therma Heat Slipper #2284 is an indoor slipper with an outer sole of rubber or plastics. The upper, which covers the ankle, is made of textile fleece and has a hook and loop closure above the ankle which secures the slipper to the wearer’s foot.
NY N183637 classified the BRRPAW FOOT CAST COVER (identified in the ruling as the CAST SOCK #2556) in subheading 6115.96.90, HTSUS, which provides for “Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted: Other: Of synthetic fibers: Other.”
NY N183637 classified the BRRPAW THERMA-HEAT SLIPPER (identified in the ruling as the Therma Heat Slipper #2284) in 6404.19.70, HTSUS, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials: Footwear with outer soles of rubber or plastics: Other: Other: Valued over $3 but not over $6.50/pair: Other.”
You request that we reconsider our classification of these items as orthopedic appliances, and parts and accessories thereof, under subheading 9021.10.00, HTSUS, as they are used for medical problems.
ISSUE:
Whether the cast cover is classified as socks and other hosiery, in heading 6115, HTSUS, or whether it is provided for as parts and accessories of orthopedic appliances, in heading 9021, HTSUS.
Whether the heat slipper is classified as other footwear with outer soles of rubber/plastics, in heading 6404, HTSUS, or whether it is provided for as parts and accessories of orthopedic appliances, in heading 9021, HTSUS.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 GRI may then be applied.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6404 Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 Other:
Other:
Valued over $3 but not over $6.50/pair:
Other:
6404.19.79 Other.
* * *
6115 Panty hose, tights, stockings, socks and other hosiery, including graduated compression hosiery (for example, stockings for varicose veins) and footwear without applied soles, knitted or crocheted:
Other:
6115.96 Of synthetic fibers:
6115.96.90 Other:
* * *
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:
9021.10.00 Orthopedic or fracture appliances, and parts and accessories thereof.
* * *
To determine whether the subject merchandise is classified in heading 9021, HTSUS, we first consider whether they are “orthopedic appliances” within the meaning of Note 6 to Chapter 90, which provides as follows:
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 ENs to heading 9021 state, in pertinent part, the following:
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) characterised 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.).
* * *
Your letter states that the cast cover keeps the toes warm and protected while protecting the cast from dirt, grime and harmful objects. Upon examination of the sample, we find that the cast cover under consideration is designed to cover a wearer’s foot while wearing a cast. The retail packaging described the item as follows:
The BRRPAW FOOT CAST WRAP is a patented cast cover which keeps the toes and overall foot warm (silver lining technology) while having a cast in place. Foot casts are molded around the diameter of the break of the foot and will always have an opening for the toes. The BRRPaw Foot cast Wrap keeps the toes warm and protected as well as allowing the consumer the ability to keep the cast protected from dirt, grime and harmful objects.
Given its design, the cast cover at issue is only suitable to be worn with a cast, which meets the terms of Note 6 to Chapter 90, HTSUS, as an orthopedic appliance designed to support parts of the body following an injury. The instant merchandise is sold individually and not in pairs and is designed to fit either foot equally. Its construction is such that it would only be used over a casted leg to provide warmth to the foot. Therefore, it is suitable for use as an accessory solely or principally with the orthopedic appliances provided for in heading 9021, HTSUS. See, NY K86171, dated May 27, 2004 and NY K87491, dated July 6, 2004.
Based on the foregoing, we find that the cast cover meets the terms of heading 9021, HTSUS, as an accessory used solely or principally with the orthopedic appliances provided for in the heading and is specifically provided for in subheading 9021.10.00, HTSUS, which provides for “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: Orthopedic or fracture appliances, and parts and accessories thereof.”
With regard to the heat slipper, your letter states that it is a patented slipper designed to increase and sustain heat to consumers who have been diagnosed with diabetes and those who have inherent problems with poor circulation. The retail packaging describes this item as follows:
The BRR Paw Therma-Heat Slipper is a patented slipper which has been designed to aid in increasing and sustaining heat to the feet of consumers who have been diagnosed with diabetes and/or for those who have inherent problems with poor circulation by providing a silver lining technology which accelerates and sustains heat to the lower foot extremities. Diabetes affects the body’s blood circulation which in turn affects the feet which can become cold due to this lack of blood flow. The BRR Paw Therma-Heat Slipper’s silver lining promotes accelerated and sustained heat to the feet as well as protects the feet from sores, cuts, abrasions, and infections. The BRR Paw Therma-Heat Slipper enables consumers who have been treated for diabetes, arthritis, bunions or other common foot ailments to become more active without sacrificing their health due to lack of protections.
We note that, unlike the cast cover, the heat slipper is sold in pairs. We further note that its design is not suitable for use as an accessory solely or principally with the orthopedic appliances provided for in heading 9021, HTSUS.
Furthermore, the heat slipper does not prevent or correct bodily deformities and does not support or hold parts of the body following an illness, operation or injury within the meaning of Note 6 to Chapter 90, HTSUS. Although you assert that the subject heat slipper is designed to provide heat and assist with circulation, we find that it is not “ejusdem generis” or “of the same kind” of merchandise as orthopedic appliances listed in heading 9021, HTSUS. In this regard, we note that the heat slipper at issue is not similar to any of the exemplars covered by the ENs to heading 9021, HTSUS. Hence, the heat slipper is correctly classified in NY N183637 as footwear of subheading 6404.19.70, HTSUS (2011), now subheading 6404.19.79, HTSUS (2016).
HOLDING:
By application of GRI 1, the subject cast cover is provided for in heading 9021, HTSUS, which provides for “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:. It is specifically provided for in subheading 9021.10.0000, HTSUSA (Annotated), which provides for “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: Orthopedic or fracture appliances, and parts and accessories thereof.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web, at http://www.usitc.gov.tata/hts/.
EFFECT ON OTHER RULINGS:
NY N183637, dated October 4, 2011, is hereby MODIFIED as set forth herein with respect to the classification analysis of the “BRRPAW FOOT CAST COVER” (identified in the ruling as the CAST SOCK #2556). The classification of the “BRRPAW THERMA-HEAT SLIPPER” (identified in the ruling as the Therma Heat Slipper #2284) is not affected by this modification.
In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division