CLA-2 CO:R:C:G 086378 JS

Mr. Gilbert J. Hill
Gilbert J. Hill & Associates
4922 Sheridan Avenue South
Minneapolis, MN 55410

RE: Reconsideration of NYRL 847168

Dear Mr. Hill:

This is in reference to your request for reconsideration of NYRL 847168 dated December 5, 1989, classifying elbow, wrist, knee and back warmers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The subject merchandise are tubular shaped articles made of 43% angora, 18% lambswool, 26% polyamid and 13% elasthan which forms a fabric of a weft knit construction. They are specially designed to fit certain body parts, i.e. the wrists, elbows, knees and back, and are, according to your statements, intended for use by people afflicted with arthritis or rheumatism.

The manufacturer's literature enclosed with your letter states that "rheumatoidal and muscular aches, blood related conditions, kidney and bladder ailments, in addition to all illness connected to colds can be prevented in a natural way." The primary purpose of these articles appears to be the maintenance of localized warmth which in turn would provide greater comfort. The wool and angora components also act to absorb perspiration, and the elasticity of the items may in some cases provide support.

ISSUE:

Whether the merchandise at issue are classifiable in heading 9021 as orthopedic appliances or heading 6117 as other clothing accessories, HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that the classification shall be determined according to the terms of the headings and any relevant section or chapter notes.

Heading 9021, HTSUSA, provides for orthopedic appliances. The Explanatory Notes ("EN") constitute the official interpretation of the tariff at the international level. EN 90.21 states that orthopedic appliances are those which either prevent or correct bodily deformities, or support or hold organs following an illness or operation. Various examples are also listed, none of which are similar in kind or function to the samples at issue. Although the instant merchandise may be intended for health benefits for arthritic persons and others, there is no indication that they prevent or correct any deformities that may result from arthritis, rheumatism or any other ailment. Therefore, they are not considered orthopedic appliances.

HRL 058883 issued March 23, 1979 stated that where an article is primarily used to provide comfort, or is not prescribed for the medical treatment of an ailment, then it will not be classifiable as an orthopedic appliance. Our inspection of these products and inquiries with medical appliance personnel further sustain the evidence that such items function to provide comfort and warmth only, and are not purchased by prescription.

In addition, these items do not have the support mechanisms, i.e. metal reinforcements, special pads, adjustable springs and rigid parts, that distinguish the items contemplated by EN 90.21 from other articles that may have medical uses. The items in consideration may at best be helpful in alleviating some pressure or swelling; there is no evidence, however, that they are used to support or hold organs following an illness or operation. See HRL 081270 issued September 1, 1988 (a support belt for kidneys, back and stomach, and women's girdles, classified under a provision for corsets, girdles, brassieres, and similar supporting garments).

Heading 6117, HTSUSA, provides for other made up clothing accessories. EN 61.17 states that this heading covers made up knitted or crocheted clothing accessories, not specified or included in the preceding headings of this Chapter or elsewhere in the Nomenclature. Included, inter alia, under part (7), are kneebands, other than those of heading 95.06 used for sport.

The knee bands at issue are therefore specifically mentioned by example as clothing accessories. Similarly, the wrist and elbow bands, as well as the back warmer, are like articles that cannot be distinguished in function or use by virtue of the different body parts they are designed for. Thus, each of the samples at issue are properly classifiable as other clothing accessories under heading 6117, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6117.80.0020, HTSUSA, which provides for other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: other accessories, of wool, textile category number 459, and dutiable at the rate of 15.5 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

Jerry Laderberg, Acting Director
Commercial Operations Division