CLA-2 OT:RR:CTF:TCM H268535 CkG
TARIFF NO: 6307.90.98
Port Director
U.S. Customs and Border Protection
Port of Buffalo
726 Exchange Street, Suite 400
Buffalo, NY 14210
ATTN: Kristen Bentson, Senior Import Specialist
Re: Application for Further Review of Protest No. 0901-15-100067; classification of pre-cut kinesiology tape
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 0901-15-100067, dated April 30, 2015, on behalf of SpiderTech, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of pre-cut kinesiology tape in heading 6307, HTSUS.
The subject merchandise was entered on July 1, 2014, in subheading
3005.10.50, HTSUS, which provides for “Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes: Adhesive dressings and other articles having an adhesive layer: Other.” The subject entry was liquidated on December 5, 2014, in subheading 6307.90.98, as an other made up article of textile.
Protestant also raises a post-importation claim for preferential duty treatment under NAFTA. No claim of NAFTA preference was made at the time of entry, and no supporting documentation was submitted at any time in connection with the instant entries.
In addition to the Application for Further Review, we have considered arguments made by counsel on behalf of Protestant in a meeting with my staff on May 1, 2017.
FACTS:
The subject merchandise, identified as the “Full Knee Spider”, consists of an elastic cotton, coated with an adhesive glue and cut into a specific shape and pattern designed to conform to the shape of the knee. The cotton fabric is covered with a slip of paper that is peeled off when the tape is applied. The Knee Spider is marketed for use as a therapeutic adhesive tape which is applied directly to the skin to support the knee and limit the mobility of the joint, thereby facilitating the healing of injuries and wounds, relieving pain, and preventing injury during day-to day activities. Specifically, the Full Knee Spider is marketed for use in the treatment or prevention of conditions such as arthritis, patellar tendinopathies, patello-femoral joint instability, ligament strains, postoperative rehabilitation, and meniscal degeneration. The packaging states that the Knee Spider “should not to be applied to irritated or injured skin”.
The elastic cotton is sourced in Japan. It is coated with an adhesive glue and applied with a protective paper backing in Japan, then imported to Canada in rolls. In Canada, the paper backing is removed and the cotton is further coated with an additional proprietary adhesive, then cut to its final shape, applied with another peel-off paper backing and packaged for sale.
ISSUE:
Whether the Full Knee Spider is classified in heading 3005, HTSUS, as a bandage put up for retail sale for medical purposes, or in heading 6307, HTSUS, as an other made up article of textile.
Whether the Full Knee Spider is eligible for preferential treatment under NAFTA
LAW AND ANALYSIS:
Classification:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 0901-15-100067 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a prior CBP ruling with respect to the same or substantially similar merchandise, specifically Headquarters Ruling Letter (HQ) 967980, dated September 12, 2006, and HQ 966637, dated October 22, 2003.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principals set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context with requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determine first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS provisions under consideration are as follows:
3005: Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes
3005.10: Adhesive dressings and other articles having an adhesive layer:
3005.10.50: Other…
* * * * *
6307: Other made up articles, including dress patterns:
6307.90: Other:
6307.90.98: Other…
* * * * *
Note 2 to Section VI, HTSUS, states:
2. Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the tariff schedule.
Note 2 to Chapter 59 provides, in pertinent part:
2.- Heading 59.03 applies to :
(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the
weight per square metre and whatever the nature of the plastic material (compact or cellular), other than :
Fabrics in which the impregnation, coating or covering cannot be seen with the
naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour;
Note 7 to Section XI provides as follows:
7.- For the purposes of this Section, the expression “made up” means :
(a) Cut otherwise than into squares or rectangles;
(b) 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, table cloths, scarf squares, blankets);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or
compressed border and the other edges treated as described in any other subparagraph of this Note, but excluding fabrics the cut edges of which have been prevented from unravelling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but
excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means;
(e) Cut to size and having undergone a process of drawn thread work;
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of
two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded);
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of
a number of items in the length.
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 30.05, HTS, states, in pertinent part, as follows:
This heading covers articles such as wadding, gauze, bandages and the like, of textile, paper, plastic, etc., impregnated or coated with pharmaceutical substances (counter-irritant, antiseptic, etc.) for medical, surgical, dental or veterinary purposes.
These articles include wadding impregnated with iodine or methyl salicylate, etc., various prepared dressings, prepared poultices (e.g., linseed or mustard poultices), medicated adhesive plasters, etc. They may be in the piece, in discs or in any other form.
Wadding and gauze for dressings (usually of absorbent cotton) and bandages, etc., not impregnated or coated with pharmaceutical substances, are also classified in this heading, provided they are exclusively intended (e.g., because of the labels affixed or special folding) for sale directly without re-packing, to users (private persons, hospitals, etc.) for use for medical, surgical, dental or veterinary purposes.
* * * * *
In light of the requirements set forth, supra, by Note 2 to Section VI, HTSUS, the classification of the Spider Tech kinesiology tape turns on whether the merchandise is described by the terms of heading 3005, HTSUS. Heading 3005, HTSUS, provides for “Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.”
The term “bandages” is not defined in the HTSUS or the ENs. However, when a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (“To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic and other materials.” (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (Fed. Cir. 1982))).
The Oxford English Dictionary defines the term “bandage,” in relevant part, as “A strip or band of woven material used to bind up a wound, sore, or fractured limb.” Oxford English Dictionary, http://www.oed.com. In addition, Stedman’s Medical Dictionary, 27th Edition (Stedman’s), defines the term “bandages” as “...piece[s] of cloth or other material, of varying shape and size, applied to a body part to make compression, absorb drainage, prevent motion, retain surgical dressings” (Stedman’s). Consistent with these definitions, CBP has previously interpreted the term “bandage” to include pieces of material applied to a body part to make a compression, absorb drainage, prevent motion, retain surgical dressing, or lend support to a wound. See NY I84715, dated August 8, 2002; and HQ 966637, dated October 22, 2003.
Additionally, in CBP’s Informed Compliance Publication (ICP), What Every Member of the Trade Community Should Know About: Wadding, Gauze, Bandages, and Similar Articles (Heading 3005, HTSUS), dated July 2006 (“ICP: Heading 30.05”), CBP notes that “Adhesive tapes are also included in heading 3005, provided they are impregnated or coated with pharmaceutical substances or are put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes [EN exclusionary item (a) to heading 5906, p. 1035]. In such applications they are generally used to retain dressings. The primary concern in the use of such tapes is that they be hypoallergenic and nonocclusive, allowing the passage of excessive moisture away from the skin.”
In addition to meeting the common meaning of the term “bandage,” the text of heading 3005, HTSUS, also requires that articles of the heading meet one of two additional descriptions—namely, of being “impregnated or coated with pharmaceutical substances” or “put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.” Moreover, the ENs to heading 30.05, HS, state that wadding and gauze for dressings (usually of absorbent cotton) and bandages, etc., not impregnated or coated with pharmaceutical substances, are also classified in this heading, provided they are exclusively intended (e.g., because of the labels affixed or special folding) for sale directly without re-packing to users (private persons, hospitals, etc.) for use for medical, dental, or veterinary purposes.
In the ICP on products of heading 3005, CBP elaborates further on what constitutes a “medical purpose” in the context of heading 3005:
Items that exclusively lend support to body parts are not classifiable in heading 3005. Stockings for varicose veins, suspensory bandages, supporting belts, athletic supporters, maternity belts, thoracic support bandages, abdominal support bandages, and supports for wrists, knees and elbows are not items belonging to the class or kind of items enumerated in heading 3005. Some of these products may be described as compression articles and be rated (in millimeters of mercury) for compression. Some of these products may even be called “bandages” (certain washable, reusable elastic bandages), but they are not designed for use as dressings, bandages, etc. as defined. They are not used to treat wounds. They do not act as compresses applied to wounds. They do not immobilize body parts in order to help in wound healing. They are strictly utilized to help support muscles and joints during the course of normal or athletic activity. The elasticity of such products makes them ideal for supporting sprains because they allow limited motion and stretching in case of swelling so that circulation is not impaired. If their intended supportive effect derives solely from their elasticity, they are classifiable in subheadings of Section XI HTS (“Textiles and Textile Articles”) according to composition and design [Chapter 90, Note 1(b)].
The Spider Tech Knee Spider tape is a textile material applied to a body part to lend support to an injury. Inasmuch as the Spider Tech kinesiology tape is not impregnated or coated with pharmaceutical substances, this office need only consider whether it is put up for retail sale for medical, surgical, dental or veterinary purposes.
Protestant states that in addition to the use of the Knee Spider in improving pain and the prevention of or recovery from knee injuries, it is also used in clinical applications such as wound dressing and scar management. However, the Knee Spider is marketed primarily, if not exclusively, for the reduction of pain associated with knee injuries and arthritis, as well as for joint stability and injury prevention. The product description on the Protestant’s website emphasizes the use of the Full Knee Spider in reducing pain by supporting the knee during day-to-day activities, with no mention of the medical applications referenced by the Protestant. Furthermore, the packaging of the product explicitly states that it should not be applied to injured or irritated skin. Finally, even if it is sold directly to medical professionals and hospitals, as argued by counsel, the Full Knee Spider is also available for purchase directly by private users on https://www.spidertech.com.
Pursuant to the Explanatory Note to heading 3005 as well as prior CBP rulings, merely providing support for injured body parts, or to alleviate chronic pain, is not sufficient to constitute a medical purpose for the purpose of classification in heading 3005, HTSUS, if the supportive effect is derived solely from the product’s elasticity. Protestant asserts that its kinesio tape’s therapeutic benefit is derived from more than just its elasticity; the tape also features a “heat-activated spring-like method of adhesive application, which decompresses the skin to improve blood and lymphatic flow between the skin and injured tissue”. In other words, the therapeutic effect is due to the combination of the fabric’s elasticity and its adhesiveness.
Without commenting on the efficacy of kinesio tape in general for the various claimed applications, our research indicates that the application of the Knee Spider specifically is more narrow. The Full Knee Spider itself is advanced beyond a roll or even pre-cut strips of kinesiology tape; it is cut in a specific shape which can only be practically applied to the knee, and which is designed for the purpose of supporting the knee joint rather than for application to injured skin—a use explicitly warned against in the product packaging. Rather, the Full Knee Spider is geared towards providing support for the knee to either prevent injury or to aid in movement after an injury. There is no indication that the product can or should be used as a wound dressing or bandage, nor would the shape and design of the product make it practical for such use.
Protestant also notes that the product is registered with the FDA, and classified as a bandage under FDA regulation 21 CFR 880.5240, which defines “medical adhesive tape and adhesive bandage as “a device intended for medical purposes that consists of a strip of fabric material or plastic, coated on one side with an adhesive, and may include a pad of surgical dressing without a disinfectant. The device is used to cover and protect wounds, to hold together the skin edges of a wound, to support an injured part of the body, or to secure objects to the skin.” At the outset, we note that other agency regulations and definitions are not binding on CBP. Additionally, we note that Part 880 of Title 21 covers “General Hospital and Personal Use Devices”, and subpart F of part 880 covers “General Hospital and Personal Use Therapeutic Devices”—which does not particularly correlate with the much narrower category of “Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.” Subpart F further covers products such as medical support stocking (21 CFR 880.5780), which CBP does not consider products of heading 3005, HTSUS. Thus, we do not find the registration and classification of the instant product with the FDA to be persuasive as to its classification in heading 3005, HTSUS.
CBP has found similar varieties of elastic adhesive tape to be products of heading 3005, HTSUS, in HQ 966637, dated October 22, 2003, and HQ 967980, dated September 12, 2006. However, we note that the products at issue in these rulings were exclusively or principally sold directly to private healthcare entities, unlike the knee spider, which is sold directly to private users. Furthermore, the elastic tapes in question were sold in strips or rolls and not pre-cut into a specific pattern; such strips can be used in a greater variety of applications, including in the manner of the adhesive tapes used in wound dressings of a kind classified in heading 3005, HTSUS.
Based on the foregoing, we find that the Full Knee Spider is not a bandage used for medical purposes and is therefore not classified in heading 3005, HTSUS.
The full knee spider is an article of textile, and is made up according to Note 7 of Section XI. It is classified in heading 6307, HTSUS.
NAFTA eligibility:
Protestant first made a claim of NAFTA eligibility for the subject entries in their protest submission filed on April 30, 2015; as they did not claim NAFTA preference at time of entry, their claim is governed by 19 U.S.C. §1520(d), concerning post-importation claims of NAFTA preference.
Section 520(d), Tariff Act of 1930, as amended (19 U.S.C. § 1520(d)), provides
as follows:
Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the [NAFTA] rules of origin ... for which no claim for preferential tariff treatment was made at the time of importation if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes: (1) a written declaration that the good qualified under those rules at the time of importation;
(2) copies of all applicable NAFTA Certificates of Origin ...; and,
(3) such other documentation relating to the importation of the goods as the Customs Service may require.
The CBP regulations implementing 19 U.S.C. §1520(d) are found in 19 C.F.R. §181.31-181.33. 19 CFR §181.32 sets forth the filing procedures for filing a proper NAFTA preference claim under 19 U.S.C. §1520(d), as follows:
A post-importation claim for a refund shall be filed by presentation of the following:
(1) A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good;
(2) Subject to 19 CFR §181.22(d), a copy of each Certificate of Origin pertaining to the good;
(3) A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. An identification of the person if the information was so provided. (4) A written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties under the NAFTA relating to the good and identification of same. (5) A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law, and if so, identification of same.
As the protestant did not file any additional documentation, declaration or statements in support of their claim of NAFTA preference in accordance with the requirements of 19 U.S.C. § 1520(d) and 19 CFR §181.32(b), they did not file a valid post-importation request for NAFTA treatment. Accordingly, the imported articles are not eligible for preferential tariff treatment under the NAFTA.
HOLDING:
By application of GRI 1, the SpiderTech Full Knee Spider is classified in heading 6307, specifically subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other…” The 2015 column one, general rate of duty is 7% ad valorem.
The imported articles are not eligible for preferential tariff treatment under the NAFTA.
You are instructed to deny the protest. 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 the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public online at
http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division