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HQ 967345




February 25, 2005

CLA-2 RR:CR:TE 9673545 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6116.92.6440

Dr. Ian MacMorran
IMAK Medical Director
IMAK Products Corporation
2515 Camino Del Rio South, 240
San Diego, CA 92108

RE: Request for Reconsideration of New York Ruling Letter F82426, dated February 22, 2000, on the Tariff Classification of a "Smart Glove" wrist support

Dear Dr. MacMorran:

This is in reply to your letter of October 10, 2004, requesting reconsideration of New York Ruling Letter F82426, dated February 22, 2000, classifying your product described as a "Smart Glove" wrist support in subheading 6116.92.6440, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as a fingerless mitt. You assert that the "Smart Glove" is an orthopedic wrist support classifiable in either subheading 9021.19.8500, HTSUSA, or subheading 6307.90.9889, HTSUSA. You submitted a sample of the "Smart Glove", a summary of a study performed on the "Smart Glove", and a number of customer testimonials to aid us in our determination.

FACTS:

The merchandise under consideration, designated as a "Smart Glove", is made from two layers of a knit fabric which is 90 percent cotton and 10 percent spandex. This fabric is then cut to the shape and assembled into a mitt. The mitt is designed to cover part of the forearm, the wrist, and hand but not the fingers of the wearer. It is approximately 6 inches long and 3 1/2 inches wide, narrowing slightly at the wrist area. It has a thumb opening. A flat flexible removable support strip (described as a splint) is inserted into a pocket on the top of the item. A built-in beanbag pad has been sewn into the wrist area of the "Smart Glove". All three openings have been reinforced with additional fabric. The packaging states that the "Smart Glove" helps prevent and relieve wrist pain. It claims to help prevent and relieve carpal tunnel syndrome, increase comfort and circulation and ensure ergonomically correct wrist position.

ISSUE:

Whether the "Smart Glove" wrist support is classifiable under Heading 9021, HTSUSA, as an orthopedic appliance, Heading 6116, HTSUSA, as a mitt, or under Heading 6307 HTSUSA, as an other made-up textile article?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 GRIs may then be applied.

The "Smart Glove" is potentially classifiable in three HTSUSA headings. One possible heading is heading 9021, HTSUSA, which provides for orthopedic appliances and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability. Other possible headings for the merchandise include heading 6116, HTSUSA, which provides for gloves, mittens, and mitts and heading 6307, HTSUSA, which provides for other made up textile articles.

HEADING 9021, HTSUSA

Heading 9021, HTSUSA, 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.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The ENs to heading 9021 state that:

The heading does not include: Supporting belts or other support articles of the kind referred to in Note 1 (b) to this Chapter,(generally heading 62.12 or 63.07).

Note 1 (b) of Chapter 90 maintains:

This chapter does not cover 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, supports for joints or muscles (section XI).

The wrist support at issue does not depend solely on elasticity to support the joints and therefore, would not be excluded from classification in heading 9021 on the basis of Note 1 (b) of Chapter 90.

According to Taber's Cyclopedic Medical Dictionary, Edition 15, 1985, orthopedic is defined as "concerning orthopedics; prevention or correction of deformities." A deformity is defined by Taber's Cyclopedic Medical Dictionary as "an alteration in the natural form of a part or organ. Distortion of any part or general disfigurement of the body. It may be acquired or congenital. If present after injury, usually implies the presence of fracture, dislocation or both. May be due to extensive swelling, extravasation of blood or rupture of muscles."

The EN to heading 9021 state that the orthopedic appliances referred to in the heading are appliances for "preventing or correcting bodily deformities" or "supporting or holding organs following an illness or operation." The EN to heading 9021 lists the type of orthopedic appliances that are included in that heading as follows:

1. Appliances for hip diseases (coxalgia, etc.)

2. Humerus splints (to enable use of an arm after resection), (extension splints).

3. Appliances for the jaw.

4. Traction, etc., appliances for the fingers.

5. Appliances for treating Pott's disease (straightening head and spine)

6. Orthopaedic footwear and special insoles designed to correct orthopaedic conditions, provided they are either (1) made to measure (2) mass-produced, presented singly and not in pairs and designed to fit either foot equally.

7. Dental appliances for correcting deformities of the teeth (braces, rings, etc.)

8. Orthopedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.).

9. Trusses (inguinal, crural, umbilical, etc., trusses) and rupture appliances.

10. 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:

(a) Special pads, springs, etc., adjustable to fit the patient.

(b) The materials of which they are made (leather, metal, plastic, etc.); or

(c) The presence of reinforced parts, rigid pieces of fabric or bands of various widths.

The special design of these articles for a particular orthopedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold.

11. Orthopaedic suspenders (other than simple suspenders of knitted, netted or crocheted materials, etc.)

Examination of the "Smart Glove" wrist support reveals that it is not "ejusdem generis" or "of the same kind" of merchandise as orthopedic appliances listed in heading 9021. The merchandise at issue is not intended to be worn post-operation or to correct a bodily deformity. We note that the materials submitted, as well as the packaging, states that the subject merchandise is utilized to prevent and relieve wrist pain, to increase comfort and circulation, to ensure ergonomically correct wrist position, and to allow full use of the hand. The subject merchandise is not described as being utilized to "prevent or correct bodily deformities." There is also no mention of use of the "Smart Glove" in relation to the presence of fractures or dislocations.

The flat flexible removable support splint in the sample is quite flexible and therefore serves to differentiate the wrist supports from the exemplars listed in the ENs to heading 9021, HTSUS. The ENs state that the splints and other fracture appliances referenced in heading 9021 may be used either to immobilize injured parts of the body or to set fractures. While the "Smart Glove" does to some extent restrict movement, it does not immobilize the wrist as contemplated in the EN to heading 9021. See HQ 964317, dated May 1, 2001 (ruling that a knee brace made of 90 percent neoprene and 10 percent nylon or polyester and elastic with two hinged metal braces would be excluded from classification in heading 9021 because it does not immobilize the knee); HQ 958190, dated September 5, 1995, (ruling that a neoprene wrist support containing permanently inserted, rigid plastic support bars that were designed to immobilize the wrist in order to relieve tendinitis and prevent recurrence of carpal tunnel syndrome was properly classifiable in heading 9021).

We note additionally that with the "splint" removed, which is easily done, the item provides some elastic support for the wrist and the "bean bag" provides comfort for the hand when resting on the edge of the desk, etc., which seems to be its main purpose. Items which may be used to prevent sprains or strains and to support the area of the body where they are worn are not considered to be of the class or kind of appliance used for recovery from bodily deformity or used following illnesses or operations of an incapacitating nature. See NY 862972, dated May 31,1991 (hinged knee support and back support with plastic stiffeners excluded from Heading 9021). The appliances included, in heading 9021, HTSUSA, e.g., appliances for hip disease, for correcting scoliosis and trusses (used generally for treating hernias) are similar in the sense that they enable the wearer to engage in the activities of everyday life. The "Smart Glove" is not an item that is generally worn in order to function in everyday life, but rather to enhance performance while typing on a keyboard, laptop, calculator, etc. We note that the retail packaging for the item does not describe it as preventing or correcting bodily deformities. The fact that most, if not all, of the items referred to in the EN to heading 9021 must be fitted to a particular individual is also a feature which the "Smart Wrist" support does not share.

Although the "Smart Glove" wrist support would not be excluded from heading 9021 because it does not derive support solely from its elasticity, as discussed above, it is nonetheless not esjudem generis with the exemplars in heading 9021.

HEADING 6116

Having precluded classification in Heading 9021, HTSUSA, we must determine whether classification in Heading 6116, HTSUS, is appropriate. Heading 6116, HTSUS, provides for gloves, mittens and mitts, knitted or crocheted.

The EN to heading 6116 provides, in part, for the following:

This heading covers all knitted or crocheted gloves, without distinction between those for women or girls and those for men or boys. It includes ordinary short gloves with separate fingers, mittens covering only part of the fingers, mitts with separation for the thumb only and gauntlet or other long gloves that may cover the forearm or even part of the upper arm.

The EN to heading 6116, HTSUSA, further explains that the heading does not cover:

(a) Knitted or crocheted gloves, mittens and mitts lined with furskin or artificial fur, or with furskin or artificial fur on the outside (other than as mere trimming) (heading 43.03 or 43.04).

(b) Gloves, mitts and mittens for babies (heading 61.11).

(c) Textile gloves, mittens and mitts, not knitted or crocheted (heading 62.16).

(d) Friction "gloves" for massage or toilet use (heading 63.02).

At issue is whether the "Smart Glove" is classifiable as a mitt within this heading. In an effort to ascertain the definition of the word "mitt," we referred to several lexicographic sources. Fairchild's Dictionary of Fashion, 2nd Edition, by Charlotte Mankey Calasibetta, defines the word "mitt" as follows:

Fingerless gloves, reaching above the wrist, often of lace or sheer fabric and worn with bridal dresses. Originally a hand-covering in wool worn in "Colonial America."

Webster's Third New International Dictionary defines "mitt" as:

A women's dress glove leaving the fingers uncovered, often extending to or above the elbow, and made of a dressy material (as lace, net, silk).

Funk and Wagnalls New Standard Dictionary of the English Language defines "mitt" as:

A sort of glove, often of lace or knit, worn on hand or wrist or forearm, but not extending over the fingers; something resembling such a covering.

The Fashion Dictionary by Mary Brooks Picken defines "mitt" as:

Fingerless glove reaching over wrist, and sometimes arm:

The Fashion Dictionary by Mary Brooks Picken defines "glove" as:

Covering for hand, having separate stall or sheath for each finger, which distinguishes it from mitt or mitten; sometimes extending over wrist or arm

We note that in HQ 953419, dated March 25,1993, we stated that mitts of heading 6116 protect the hand in some fashion. See, NY A88079, dated March 21, 1994, (ruling a kayaking mitt was designed to protect the hands); NY I82813, dated June 26, 2002, (a moisturizing mitt); NY 888582, dated August 20, 1993 (a shooting mitt); NY K82585, dated February 6, 2004 (a fingerless bowling glove); NY 889772, dated September 24, 1993, (a martial arts mitt); and NY H80836, dated June 1, 2001, (a fingerless computer glove). It is our view that the "Smart Glove" is a mitt of heading 6116, HTSUS.

HEADING 6307

Heading 6307, HTSUSA, is a residual provision which provides for other made up article of textiles not included more specifically in other headings of Section XI or elsewhere in the tariff.

As the "Smart Glove" is a mitt of heading 6116, HTSUS, it is excluded from classification in heading 6307.

Accordingly, classification of the subject merchandise is proper under subheading 6116.92.6440, HTSUSA.

HOLDING:

NY F82426 is hereby affirmed.

The "Smart Glove" wrist support is properly classified in subheading 6116.92.6440, HTSUSA, which provides for "Gloves, mittens and mitts, knitted or crocheted: Other: Of cotton; Other; Made from a pre-existing machine knit fabric: Without fourchettes: Other." The general column one rate of duty is 23.5 percent ad valorem.

Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number for the "Smart Glove" (331) applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent negotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas" which is available on our web cite at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web cite of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Sincerely,

Myles B. Harmon

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