SIGVARIS, INC., Plaintiff, v. UNITED STATES, Defendant.
Court No. 11-00532
United States Court of International Trade.
May 17, 2017
Slip Op. 17-60 | 41 CIT 1327
Choe-Groves, Judge:
OPINION
Choe-Groves, Judge:
This case addresses whether various models of graduated compression hosiery, arm-sleeves, and gauntlets (fingerless, glove-like articles worn on the hands) are specially designed for the use or benefit of handicapped persons and are therefore duty-free under the Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials (“Nairobi Protocol“) and the
Sigvaris, Inc. (“Plaintiff“) argues that U.S. Customs and Border Protection (“Customs“) improperly denied its protests that challenged the classification of its imported graduated compression merchandise. See Pl. Br. 1. Plaintiff contends that all of its compression products are entitled to duty free treatment because the products are classifiable under the Nairobi Protocol and
For the reasons discussed below, the court (1) denies Plaintiff‘s motion for summary judgment and grants Defendant‘s cross-motion for summary judgment with respect to the classification of the models of hosiery at issue, which were properly classified by Customs under
UNDISPUTED FACTS
As required by
A. Jurisdictional and Procedural Facts
Plaintiff imported 105 entries of graduated compression merchandise into the United States at the Port of Atlanta in Georgia between September 2008 and November 2010. See Pl. Facts ¶¶ 1-2; Def. Facts Resp. ¶¶ 1-2. The entries were liquidated by Customs between August 2009 and September 2011. See Pl. Facts ¶ 3; Def. Facts Resp. ¶ 3. Customs classified the graduated compression merchandise under various provisions of the HTSUS as follows: (1) the hosiery at a duty rate of 14.6% ad valorem under
Plaintiff filed timely protests contesting the classification of several models of compression products and seeking duty free treatment of its merchandise. See Protest Nos. 1704-10-100013, -10-100018, -10-100068, -10-100240, -10-100258, -11-100057, -11-100189, -11-100352, -11-100414. All nine of Plaintiff‘s protests were deemed denied by Customs on December 12, 2011.3 See Summons; Compl. ¶ 4, Mar. 30, 2012, ECF No. 6. Plaintiff paid liquidated duties according to Customs’ classification of the merchandise. See Pl. Facts ¶ 4; Def. Facts Resp. ¶ 4. Thereafter, Plaintiff commenced this action. See Summons.
B. Facts Regarding the Imported Compression Products
The imported merchandise consists of various models of graduated compression products, each differing in style, material, length, and compression level. See Def. Facts ¶¶ 1-8; Pl. Facts Resp. ¶¶ 1-8. Each model is designed to apply a fixed range of graduated compression measured in millimeters of mercury (“mmHg“). See Def. Facts ¶¶ 3-4; Pl. Facts Resp. ¶¶ 3-4. Graduated compression applies maximum pressure at the furthest point in the extremity and decreases gradually up the limb. See Pl. Facts ¶ 6; Def. Facts Resp. ¶ 6; Def.
The imported graduated compression hosiery consists of products from three product lines—the 120 Support Therapy Sheer Fashion Series for women (“Series 120“), the 145 Support Therapy Classic Dress Series for women (“Series 145“), and the 185 Support Therapy Classic Dress Series for men (“Series 185“). See Def. Facts ¶ 2; Pl. Facts Resp. ¶ 2; Pl. Facts ¶ 5; Def. Facts Resp. ¶ 5. Series 120 hosiery is available in a variety of models, including 120P (pantyhose), 120M (maternity pantyhose), 120N (thigh-high hosiery), 120C (calf-length hosiery), and 120CO (calf-length hosiery with open toe). See Def. Facts ¶ 5; Pl. Facts Resp. ¶ 5. Series 120 models are “made of a combination of nylon and spandex, and in some products, also silicone.” Def. Facts ¶ 6; Pl. Facts Resp. ¶ 6. Series 145 and Series 185 models of compression hosiery “are calf-length graduated support dress socks made of a combination of nylon and spandex.” Def. Facts ¶ 7; Pl. Facts Resp. ¶ 7. All of the hosiery models at issue from these product lines exert 15-20 mmHg of compression. See Def. Facts ¶¶ 6-7; Pl. Facts Resp. ¶¶ 6-7; see also Pl. Exs. Rule 56.3 Statement of Facts Mem. Ex. A at 000029-30, 000035, Dec. 21, 2015, ECF No. 56-4 (“Ex. A“). The compression applied by the hosiery is greatest at the ankle and gradually decreases as the stocking moves up the leg.4 See Pl. Facts ¶ 6; Def. Facts Resp. ¶ 6; Def. Facts ¶ 3; Pl. Facts Resp. ¶ 3.
The imported graduated compression arm-sleeves and gauntlets are part of the 500 Medical Therapy Natural Rubber Series (“Series 500“). See Def. Facts ¶ 8; Pl. Facts Resp. ¶ 8. Series 500 arm-sleeves and gauntlets are available in the following models: 503A (arm-sleeve without gauntlet), 503B (arm-sleeve with gauntlet), and 503Gs2 and 503GM2 (separate gauntlets). See Def. Facts ¶ 8; Pl. Facts Resp. ¶ 8. These arm-sleeves and gauntlets “are made of a combination of nylon and natural latex rubber.” Def. Facts ¶ 8; Pl. Facts Resp. ¶ 8. The arm-sleeves and gauntlets apply 30-40 mmHg of compression, which is greatest at the wrist and, in the case of the arm-sleeves, decreases gradually as the sleeve moves up the arm. See Pl. Facts ¶¶ 1, 6; Def. Facts Resp. ¶¶ 1, 6; Def. Facts ¶ 8; Pl. Facts Resp. ¶ 8.
C. Facts Regarding Chronic Venous Disease, Chronic Venous Insufficiency, and Lymphedema
Chronic venous disease (“CVD“) “is a mechanical problem of the lower limbs in which the walls of veins and valves are, to relative degrees of severity, damaged, obstructed, [or] leaking.” Def. Facts ¶ 9; Pl. Facts Resp. ¶ 9. The severity of CVD is graded according to the Clinical, Etiology, Anatomy, Pathophysiology (“CEAP“) scale where no clinical signs of CVD are classified under C0, small varicose veins are classified under C1, large varicose veins are classified under C2, edema is classified under C3, skin change with no ulceration is classified under C5, and skin change with an active ulceration is classified under C6. See Def. Facts ¶ 11; Pl. Facts Resp. ¶ 11. A quarter of adult Americans have varicose veins, many of whom do not suffer from any discomfort or other symptoms of
Lymphedema is “a chronic and incurable condition in which the patient‘s lymphatic system does not function efficiently to recirculate lymph out of the extremities.” Pl. Facts ¶ 14; Def. Facts Resp. ¶ 14. An improperly functioning lymphatic system causes lymphatic fluid and water to pool in the extremities, causing pain, swelling, sluggishness, and skin ulcerations. See Pl. Facts ¶¶ 14, 23; Def. Facts Resp. ¶¶ 14, 23; see also Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21. Lymphedema can interfere with and impair certain life functions. See Pl. Facts ¶ 20; Def. Facts Resp. ¶ 20. Women who have had their lymph nodes damaged or surgically removed during a mastectomy to treat breast cancer suffer from upper-limb lymphedema. See Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21; see also Pl. Facts ¶ 23; Def. Facts Resp. ¶ 23. Mastectomy patients “with improperly functioning lymphatic systems suffer from extremely swollen limbs due to retained lymphatic fluid.” See Pl. Facts ¶ 23; Def. Facts Resp. ¶ 23. People who suffer from upper-limb lymphedema may be unable, in some cases, to use the affected arm because of significant swelling. See Def. Facts ¶ 23; Pl. Facts Resp. ¶ 23.
If left untreated, CVI and lymphedema may cause lesions, ulcers, bleeding, and infection as the limb swells and the skin stretches to accommodate the swelling. Pl. Facts ¶ 19; Def. Facts Resp. ¶ 19.
D. Facts Regarding the Design and Use of the Imported Compression Products
The use of graduated compression can help manage and alleviate the symptoms of CVD and lymphedema. See Pl. Facts ¶¶ 12, 14; Def. Facts Resp. ¶¶ 12, 14. “Graduated compression forces blood and fluids (water, lymph) that have pooled in the extremity due to malfunctioning or damaged venous valves or lymphatic systems to circulate out of the extremity.” Pl. Facts ¶ 11; Def. Facts Resp. ¶ 11. “Forcing blood and other fluids upward, out of the extremity, prevents venous reflux or pooling, which causes . . . varicose veins, edema, and skin ulcerations.” Pl. Facts ¶ 13; Def. Facts Resp. ¶ 13.
The imported models of graduated compression hosiery impart levels of compression that can alleviate CVD symptoms. See Pl. Facts ¶ 21; Def. Facts Resp. ¶ 21. The compression hosiery products can be prescribed by a physician, but generally are neither covered by insurance nor provided to patients in hospitals. See Def. Facts ¶ 18; Pl. Facts Resp. ¶ 18. The hosiery can also be purchased over-the-counter without a prescription at durable medical supply companies, pharmacies, and over the internet. See Def. Facts ¶ 18; Pl. Facts Resp. ¶ 18. The compression hosiery is designed to be worn every day, except while sleeping. See Def. Facts ¶ 13; Pl. Facts Resp. ¶ 13. The compression hosiery does not cure CVD or lymphedema. See Pl. Facts ¶ 24; Def. Facts Resp. ¶ 24. The hosiery
The imported models of graduated compression arm-sleeves and gauntlets can alleviate the symptoms of upper-limb lymphedema. See Pl. Facts ¶ 21; Def. Facts Resp. ¶ 21. The compression arm-sleeves and gauntlets are “predominantly worn” by women who suffer from upper-limb lymphedema, which has been caused by damaged or surgically-removed lymph nodes during a mastectomy to treat breast cancer. See Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21; see also Pl. Facts ¶ 23; Def. Facts Resp. ¶ 23. The arm-sleeves reduce swelling in the arm and the gauntlets reduce swelling in the hand. See Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21. The arm-sleeves and gauntlets are prescribed as a preventative measure for people who are expected to suffer from upper-limb lymphedema as treatment for people who already suffer from upper-limb lymphedema. See Def. Facts ¶ 22; Pl. Facts Resp. ¶ 22; Pl. Facts ¶¶ 8, 17; Def. Facts Resp. ¶¶ 8, 17. They can also be prescribed for temporary use by patients undergoing surgery for other conditions that cause swelling. See Def. Facts ¶ 22; Pl. Facts Resp. ¶ 22.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to
A two-step process guides the court in determining the correct classification of merchandise. First, the court ascertains the proper meaning of the terms in the tariff provision. See Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1162 (Fed. Cir. 2017) (citing Sigma-Tau HealthScience, Inc. v. United States, 838 F.3d 1272, 1276 (Fed. Cir. 2016)). Second, the court determines whether the merchandise at issue falls within the parameters of the tariff provision. See id. The former is a question of law and the latter is a question of fact. See id. “[W]hen there is no dispute as to the nature of the merchandise, then the two-step classification analysis ‘collapses entirely into a question of law.‘” Link Snacks, Inc. v. United States, 742 F.3d 962, 965-66 (Fed. Cir. 2014) (quoting Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006)).
The court reviews classification cases de novo. See
DISCUSSION
I. Legal Framework
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRIs“) and, if applicable, the Additional U.S. Rules of Interpretation, which are both applied in numerical order. BenQ Am. Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011) (citing N. Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001)). GRI 1 instructs that, “for legal purposes, classification shall be determined according to the terms of the headings and any [relevant] section or chapter notes.” GRI 1. “Absent contrary legislative intent, HTSUS terms are to be ‘construed [according] to their common and popular meaning.‘” Baxter Healthcare Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999) (quoting Marubeni Am. Corp. v. United States, 35 F.3d 530, 533 (Fed. Cir. 1994)).
In construing the terms of the headings, “[a] court may rely upon its own understanding of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing Baxter Healthcare Corp. of P.R., 182 F.3d at 1337). The court may also consult the Harmonized Commodity Description and Coding System‘s Explanatory Notes (“Explanatory Notes“), which “provide a commentary on the scope of each heading of the Harmonized System . . . and are generally indicative of proper interpretation of the various provisions.”
Plaintiff contends that all of its compression products are classifiable as duty free under the Nairobi Protocol as articles specially designed for the use or benefit of physically handicapped persons. See Pl. Br. 3-21. Defendant contends that Customs correctly classified Plaintiff‘s compression products as ordinary articles not intended for handicapped persons under HTSUS subheadings 6115.10.40, 6307.90.98, and 6116.93.88. See Def. Br. 5-21. The central issue presented by the cross-motions for summary judgment is whether Plaintiff‘s compression products meet the requirements for duty free treatment under the Nairobi Protocol as implemented by
HTSUS 9817.00.96
The court must first ascertain the proper meaning and scope of the terms under
Congress passed the
9817 Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles:
. . .
9817.00.96 Other . . . Free
Subheading 9817.00.96, HTSUS. Classification under this provision depends on whether the merchandise is “specially designed or adapted for the use or benefit of the blind or other mentally or physically handicapped persons.”
The relevant subchapter note to Chapter 98 provides that the term “physically or mentally handicapped persons’ includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one‘s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.” U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS. This non-exhaustive list of activities indicates that the definition of handicapped persons should be interpreted liberally and encompasses a wide range of conditions, as long as the condition substantially inhibits a person‘s ability to perform essential daily tasks. Customs has also acknowledged that, “with the inclusion of activities such as breathing, this [definition of handicapped] is intended to cover a broad range of individuals.” U.S. Customs Service Implementation of the Duty-Free Provisions of the Nairobi Protocol, Annex E, to the Florence Agreement, T.D. 92-77, 26 Cust. Bull. & Dec. 240, 246 (1992) (interpretive rule) (“Customs Implementation“). Neither the HTSUS nor the subchapter note clarify precisely what is considered a ‘substantial limitation.’ The inclusion of the word “substantially” denotes that the limitation must be “considerable in amount” or “to a large degree.” See Webster‘s Third New International Dictionary 2280 (unabr. 2002).
The subchapter note specifies that the subheading does not cover “(i) articles for acute or transient disability; (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (iii)
The HTSUS does not offer any guidance for determining whether an article is “specially designed” for handicapped persons. In the absence of a clear definition under the HTSUS, the court may consult dictionaries, scientific authorities, and other reliable information sources. See Kahrs Int‘l, Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (citing Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002)). The term “specially” is synonymous with “particularly,” which is defined as “to an extent greater than in other cases or towards others.” Webster‘s Third New International Dictionary 1647, 2186 (unabr. 2002). The dictionary definition for “designed” is something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.” Webster‘s Third New International Dictionary 612 (unabr. 2002). According to these definitions, articles specially designed for handicapped persons must be made with the specific purpose and intent to be used by or benefit handicapped persons rather than the general public. Cf. Marubeni Am. Corp. v. United States, 35 F.3d 530, 534 (Fed. Cir. 1994)
Additionally, it is helpful to note that Customs has considered a number of factors to determine whether a particular product is “specially designed or adapted” for handicapped persons, including the physical properties of the merchandise, whether the merchandise is solely used by the handicapped, the specific design of the merchandise, the likelihood the merchandise is useful to the general public, and whether the merchandise is sold in specialty stores. See Customs Implementation at 242-45. Customs has weighed these factors on a case-by-case basis to determine whether merchandise is specially designed for the handicapped. See id. at 245. The Parties rely on a number of these factors in arguing whether Plaintiff‘s compression products are “specially designed or adapted” for handicapped persons. The court also considers these factors useful in analyzing whether Plaintiff‘s compression products meet the requirements of the Nairobi Protocol and
III. Classification of Plaintiff‘s Graduated Compression Products
After the court ascertains the proper meaning of the terms in the tariff provision, the court must determine next whether Plaintiff‘s compression products fall within the parameters of the tariff provision. See Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1162 (Fed. Cir. 2017) (citing Sigma-Tau HealthScience, Inc. v. United States, 838 F.3d 1272, 1276 (Fed. Cir. 2016)). To prevail on its classification claims, Plaintiff must show that there is no genuine issue of material fact that its compression products are specially designed for the use of persons who have a physical handicap as defined by the Nairobi Protocol and implemented under
A. Graduated Compression Hosiery (Series 120, 145, 185)
i. Nairobi Protocol and HTSUS 9817.00.96
Plaintiff contends that its graduated compression hosiery models are duty free under the Nairobi Protocol because they are specially designed for the use of individuals who suffer from the condition of CVD. See Pl. Br. 5-21.
As a matter of law, the court must determine first whether CVD constitutes a physical handicap under the tariff provision. A physical handicap is a permanent physical impairment that substantially limits one or more major life activities such as walking or working. See U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS. The court notes that the parties are in agreement that CVD is a mechanical problem of the lower limbs that results in a deficiency in the flow of blood due to weak, damaged, or otherwise compromised veins. See Def. Facts ¶ 9; Pl. Facts Resp. ¶ 9. It is undisputed that the condition is incurable and worsens over time, especially when left untreated. See Def. Facts ¶ 10; Pl. Facts Resp. ¶ 10. The CEAP scale is used to categorize the symptoms and the severity of CVD and its progressive stages. See Def. Facts ¶ 11; Pl. Facts Resp. ¶ 11. The symptoms experienced by people suffering from the early stages of CVD (CEAP grades C0-C2) include varicose veins as well as tired, heavy, and achy legs. See Def. Facts ¶¶ 11, 14-15; Pl. Facts Resp. ¶¶ 11, 14-15. A quarter of American adults have varicose veins, and many of those individuals do not suffer any discomfort or symptoms of CVD. See Def. Facts ¶ 20; Pl. Facts Resp. ¶ 20. People who suffer from symptoms associated with the more severe cases of CVD (CEAP grades C3-C6) (referred to as CVI) also experience swelling, skin damage, open wounds, or ulcers. See Def. Facts ¶ 12; Pl. Facts Resp. ¶ 12. The symptoms experienced in the early stages
Although Plaintiff argues that even the early stages of CVD significantly limit a person‘s ability to walk, stand, or work, see Pl. Br. 5-10, Plaintiff‘s own expert provided contrary deposition testimony establishing that people who suffer from early stages of CVD symptoms under CEAP grades C0-C2 are ambulatory and are generally able to perform daily tasks without substantial limitation. See Def. Ex. E at 55, 73-74, Mar. 10, 2016, ECF No. 61-5 (“Dr. Labropoulos Dep.“). These CVD patients may have varicose veins or tired, achy legs with some discomfort, but they are not prevented or considerably limited from walking, standing, or working. In a motion for summary judgment, “a party cannot rest upon mere allegations or denials and must point to sufficient supporting evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
The court considered numerous sources in ascertaining the proper meaning of the terms in the tariff provision, including the tariff heading, subchapter notes, dictionary definitions, the Parties’ submissions, documents and deposition transcripts in the record, and relevant case law. In the court‘s view, individuals suffering from early stages of CVD are not substantially limited in their ability to perform major life activities and are not considered physically handicapped under the tariff provision.18
The court must determine next whether Plaintiff‘s compression hosiery is specially designed for the use of physically handicapped persons. The court considered a number of factors in making this determination, including the physical properties of the merchandise, whether the merchandise is solely used by the handicapped, the likelihood the merchandise is useful to the general public, whether the merchandise is sold in specialty stores, and the specific design of the merchandise. The products are made of synthetic fibers and appear to be ordinary hosiery and socks. See Def. Facts ¶¶ 6-7; Pl. Facts Resp. ¶¶ 6-7; see also Ex. A at 000029-30, 000035. Plaintiff agrees that the hosiery is used by patients who suffer from CVD symptoms under CEAP grades C0-C2, indicating that the hosiery is useful to the general public and is not used solely by the physically handicapped. See Def. Facts ¶ 15; Pl. Facts Resp. ¶ 15. The models of compression hosiery are sold in medical supply stores and at pharmacies, but are also sold over-the-counter or over the internet with no prescription required and are generally not covered by insurance. See Def. Facts ¶ 18; Pl. Facts Resp. ¶ 18. The hosiery is not sold under Plaintiff‘s “Medical” line of compression products. See Def. Facts ¶¶ 2, 8, 19; Pl. Facts Resp. ¶¶ 2, 8, 19. All of the hosiery models are designed to apply 15-20 mmHg of compression to force blood out of the extremity and attempt to restore normal venous activity. See Pl. Facts ¶¶ 11, 13; Def. Facts Resp. ¶¶ 11, 13. The 15-20 mmHg of compression applied by the hosiery is lower than the 30-40 mmHg or higher compression levels of Plaintiff‘s “Medical” line products, and 15-20 mmHg is the lowest level of compression products sold by Plaintiff. See Def. Facts ¶¶ 6-8; Pl. Facts Resp. ¶¶ 6-8; see also Ex. A at 000025, 000029-30, 000035, 000268. The undisputed facts establish that Plaintiff‘s compression hosiery is not specially designed for the handicapped.
Plaintiff attempts to argue that a patient might use 15-20 mmHg compression hosiery to alleviate severe symptoms of CVI in certain instances when the person cannot tolerate higher levels of compression or has too much difficulty putting on hosiery with greater compression. See Pl. Br. 20-21 (citing Joint Expert Report Ex. 1 at 163; Brannan Dep. 29, 31-33, 60; Dr. Labropoulos Dep. 16, 24-25, 106-07). Plaintiff‘s argument is without merit. The court‘s inquiry must focus on whether the product at issue is specially designed for handicapped persons according to the statutory meaning, not whether there is incidental use of the product that could assist handicapped persons in limited circumstances.
The court holds that Plaintiff‘s 15-20 mmHg compression hosiery products are specially designed to address symptoms of early stages of CVD, which does not fall within the parameters of the tariff provision because individuals suffering from early stages of CVD are not physically handicapped. The models of compression hosiery at issue in this case are not classifiable under
ii. HTSUS 6115.10.40
Defendant argues in its cross-motion for summary judgment that the models of compression hosiery are classifiable under
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:
6115.10 Graduated compression hosiery (for example, stockings for varicose veins):
. . .
Other graduated compression hosiery:
6115.10.40 Of synthetic fibers (632) . . . 14.6%
Subheading 6115.10.40, HTSUS. The court agrees that the hosiery is properly classified under this provision.
The Explanatory Note to HTSUS subheading 6115.10 defines “graduated compression hosiery” as “hosiery in which the compression is greatest at the ankle and reduces gradually along its length up the leg, so that blood flow is encouraged.” Explanatory Note to Subheading 6115.10, HTSUS. There is no dispute as to whether the hosiery imparts 15-20 mmHg of graduated compression. See Pl. Facts ¶ 6; Def. Facts Resp. ¶ 6; Def. Facts ¶¶ 3-4; Pl. Facts ¶¶ 3-4. Nor is there any dispute that the hosiery is knitted. See Pl. Facts ¶ 7; Def. Facts Resp. ¶ 7. The hosiery is made of nylon, spandex, or silicone, which are synthetic fibers. See Def. Facts ¶¶ 6-7; Pl. Facts Resp. ¶¶ 6-7. The court holds that the graduated compression hosiery are classifiable under
B. Graduated Compression Arm-Sleeves and Gauntlets (Series 500)
i. Nairobi Protocol and HTSUS 9817.00.96
Plaintiff contends that its Series 500 graduated compression arm-sleeves and gauntlets are duty free under the Nairobi Protocol because the products are specially designed for the use of individuals who suffer from upper-limb lymphedema. See Pl. Br. 5-21.
The court must determine first whether upper-limb lymphedema constitutes a physical handicap under
The court does not give credible weight to the Government‘s assertion that a person with one arm is able to perform life‘s major activities without substantial limitation. See Def. Br. 20-21. Nor does the court agree with the Government‘s position that upper-limb lymphedema is not a physical handicap because only patients with severe cases of lymphedema are unable to use the affected arm. See id. at 20. For purposes of tariff classification under the Nairobi Protocol, it is sufficient that the condition of lymphedema physically impairs some persons to such a degree that their ability to care for themselves or perform manual tasks is substantially limited.
The court considered numerous sources in ascertaining the proper meaning of the terms in the tariff provision, including the tariff heading, subchapter notes, dictionary definitions, the Parties’ submissions, documents in the record, and relevant case law. The court concludes that upper-limb lymphedema resulting from a mastectomy may render the affected arm unusable because of significant swelling and substantially limits a person‘s ability to care for one‘s self. The court holds, therefore, that upper-limb lymphedema is a physical handicap within the meaning of
The court must determine next whether Plaintiff‘s compression arm-sleeves and gauntlets are specially designed for the use of physically handicapped persons. To make this determination, the court considered the physical properties of the merchandise, whether it is solely used by the handicapped, the likelihood the product is useful to the general public, whether it is sold in specialty stores, and the specific design. The undisputed facts establish that the Series 500 arm-sleeves and gauntlets are specially designed for handicapped persons within the meaning of the tariff statute. Unlike the hosiery products discussed above, the graduated compression arm-sleeves and gauntlets do not resemble any garments that are ordinarily worn by the general public. “Graduated compression forces blood and fluids (water, lymph) that have pooled in the extremity due to malfunctioning or damaged venous valves or lymphatic systems to circulate out of the extremity.” Pl. Facts ¶ 11; Def. Facts Resp. ¶ 11. “Forcing blood and other fluids upward, out of the extremity, prevents venous reflux or pooling, which causes . . . varicose veins, edema, and skin ulcerations.” Pl. Facts ¶ 13; Def. Facts Resp. ¶ 13. The arm-sleeves and gauntlets are designed to apply 30-40 mmHg of graduated compression to reduce swelling and force pooled lymph fluid to circulate out of the extremity. See Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21; Pl. Facts ¶ 11; Def. Facts Resp. ¶ 11. The compression arm-sleeves and gauntlets are “predominantly worn” by women who suffer from upper-limb lymphedema, which has been caused by damaged or surgically removed lymph nodes during a mastectomy to treat breast cancer. See Def. Facts ¶ 21; Pl. Facts Resp. ¶ 21; Pl. Facts ¶ 23; Def. Facts Resp. ¶ 23; see also Brannan Dep. at 10, 51; Ex. A at 000025, 000268. Mastectomy patients “with improperly functioning lymphatic systems suffer from extremely swollen limbs due to retained lymphatic fluid.” Pl. Facts ¶ 23; Def. Facts Resp. ¶ 23. The arm-sleeves reduce swelling in the arm and the gauntlets reduce swelling
The Government argues that the graduated compression arm-sleeves and gauntlets do not qualify for duty free treatment under the Nairobi Protocol because these are articles for a transient disability, which are expressly excluded from classification under the provision. See Def. Br. 17-21. The Government contends that the arm-sleeves and gauntlets are transient articles when they are prescribed for people who suffer from intermittent conditions or by patients after undergoing surgery. See
For these reasons, the court concludes that Plaintiff‘s compression arm-sleeves and gauntlets are specially designed for the use of women who are rendered physically handicapped due to upper-limb lymphedema following a mastectomy. The court holds that Plaintiff‘s Series 500 graduated compression arm-sleeves and gauntlets are classifiable under
ii. HTSUS 6307.90.98 and 6116.93.88
Defendant argues that the graduated compression arm-sleeves and gauntlets are classifiable under
CONCLUSION
For the foregoing reasons, the court concludes that: (1) Series 120, 145, and 185 models of graduated compression hosiery were properly classified under
Judgment will be entered accordingly.