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NY K86171

May 27, 2004
CLA-2-90:RR:NC:N1:105 K86171


TARIFF NO.: 9021.10.0090

Dr. Richard Selkon
XeroSox (Australasia) Ltd.
134 Long Drive
St. Heliers Bay
Auckland 1005 New Zealand

RE: The tariff classification of XeroSox Propump

Dear Mr. Selkon:

In your letter dated May 16, 2004, you requested a tariff classification ruling.

You state, “In brief, the product is waterproof protective cover (made of natural rubber) for people who have had a fractured arm or leg and are wearing a plaster cast, or for those people who have had a lower limb amputation and wear an artificial leg (prosthesis). If a person has a prosthetic limb or is wearing a cast for a fractured limb, they cannot get it wet or the water will damage the cast or the prosthesis. This product allows them to shower, bathe or even swim. Most importantly, people with prosthetic limbs have traditionally had to take off their limb and manoeuvre themselves (with some difficulty), into a shower containing a chair for them to sit on in order to shower. By using this product they can leave their prosthetic leg on and simply shower like anyone else. This gives them better mobility and enhances safety in this situation. The leg unit has a rubberised non-slip sole.”

Per the XeroxSox web site the waterproofness is achieved in the following manner: “Pump out the air - Continue to press the bulb until it remains flat and the XeroSox waterproof clothing is completely wrinkled. Remove the pump and push on the safety cap. Observe the XeroSox waterproof cast and bandage cover for a few minutes before going in the water. As long as the XeroxSox wasterproof clothing stays collapsed and wrinkled, the vacuum is intact and the XeroSox bandage protector cannot leak or come off.”

The XeroSox web site describes it as a “Waterproof Cast and Bandage Cover.” However, we accept the implication in your description that covering bandages is a relatively minor use. Bandages on the arms and legs are not usually left on the patient as long as a cast and many are themselves waterproof so the issue of keeping them dry during bathing, etc, is less likely to arise, especially for any one patient.

The web site indicates that you recommend that they be removed after 45 minutes of use, due to the reduction in blood flow resulting from the squeezing inherent in the process, which further distinguishes them from gloves or footwear in the common meaning of those terms even though they also cover the hand or the foot. Also, they are normally worn in bathtubs, etc., where gloves and footwear are virtually never worn, and they would virtually never be worn as a pair.

Since the XeroSox covers and adds the property of temporary waterproofness to casts and/or prosthetics, we consider them to be identifiable as suitable for use as accessories solely or principally with the apparatus of HTS 9021. They are not covered, per se, by any of the headings cited in Note 2-a to HTS Chapter 90.

Within 9021, it is clear that the arm version, in terms of HTS, Additional US Rules of Interpretation 1-a, is of a class or kind principally used in the US with the orthopedic and fracture appliances of HTS 9021.10. However, the leg version may or may not be principally used with the artificial parts of the body of 9021.31-.39.

We agree that the applicable subheading for the arm version will be 9021.10.0090, Harmonized Tariff Schedule of the United States (HTS), which provides for “other” orthopedic or fracture appliances, and parts and accessories thereof.

You state, “I was advised to contact you by Lisa Struneski, Senior Commercial Specialist, FCS New Zealand. I would appreciate your help in knowing what you would regard as an appropriate Harmonisation Tariff Code for a product.”. Note that only the classification rulings issued by the Harmonized System Committee of the World Trade Organization, of which both the US and New Zealand are members, are binding on other countries, not the rulings of any one of the members, including the US.

Regarding the leg version, we are returning your request for a classification ruling, and any related samples, exhibits, etc., because we need additional information in order to issue a ruling. Please submit the additional information indicated below:

Any information that would indicate separately what percent were sold for use with casts and with prosthetic devices.

Also include a statement as to whether classification advice has been sought from a US Customs officer; and if so, from whom, and what advice was rendered, if any.

When this information is available, you may wish to consider resubmission of your request regarding the leg version. If you decide to resubmit your request, please include all of the material that we have returned to you and mail your request to U.S. Customs, Customs Information Exchange, 10th Floor, One Penn Plaza, New York, NY 10119, attn: Binding Rulings Section.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding this letter, contact National Import Specialist J. Sheridan at 646-733-3012.


Robert B. Swierupski

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