CLA-2 CO:R:C:T 950659 SK
Mr. Gilbert J. Hill
Gilbert J. Hill & Associates
4922 Sheridan Avenue South
Minneapolis, MN 55410
RE: Revocation of Headquarters Ruling Letter 086378 (4/9/90);
classification of heat retainers; elbow, wrist, knee and back
warmers; 6307, HTSUSA; not clothing accessories
Dear Mr. Hill:
On December 5, 1989, you requested a classification ruling
for elbow, wrist, knee and back warmers under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
Headquarters Ruling Letter (HRL) 086378, dated April 9, 1990, was
issued in response to your request. Upon further review, that
classification is determined to be in error.
FACTS:
The articles at issue are tubular shaped items 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., wrists, elbows, knees
and backs. The articles are intended for use by people afflicted
with arthritis or rheumatism. The primary purpose of these
articles appears to be the maintenance of localized warmth which
in turn would provide greater comfort to the wearer. 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 heat retainers are classifiable under heading
6117, HTSUSA, which provides for other made up clothing
accessories, or under 6307, HTSUSA, which provides for other made
up articles?
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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 6117, HTSUSA, provides for clothing accessories.
There are no Legal Notes to either Chapter 61 or Section XI,
HTSUSA, which expressly provide for the classification of the
subject merchandise. Moreover, the term "accessory" is not
defined in the tariff schedule or Explanatory Notes. Webster's
New Collegiate Dictionary, (1977), defines "accessory" as a thing
of secondary or subordinate importance or an object or device not
essential in itself but adding to the beauty, convenience, or
effectiveness of something else. Customs defined accessory in
Headquarters Ruling Letter (HRL) 088540, dated June 3, 1991, as
an article that is related to the primary article, and intended
for use solely or principally with a specific article. In
heading 6117, HTSUSA, the primary article is clothing, and the
accessories classifiable under this provision will be related to
clothing, intended for use with clothing and of secondary
importance to clothing.
The alternative heading, 6307, HTSUSA, provides for other
made up textile articles. This is not a true alternative in that
heading 6307 is a "basket" provision intended to classify
merchandise not provided for more specifically in other headings
of the Nomenclature. We must determine whether classification is
proper under heading 6117, HTSUSA; if not, we will address
whether classification is proper under heading 6307, HTSUSA.
The articles at issue are heat retainers designed to provide
warmth and a modicum of support to individuals suffering from
arthritis or sports related injuries. The heat retainers are not
designed as fashion statements nor to complement articles of
clothing. The heat retainers' primary function is to provide
relief from pain and, as such, they are not dependent on any type
of clothing to perform that role. The heat retainers do not have
a secondary function in which they are intended to accessorize
clothing. In fact, the use and function of the heat retainers is
completely divorced from their use with clothing. The subject
merchandise has no logical nexus with clothing; they neither add
to clothing's beauty, convenience nor effectiveness. It is quite
clear that the articles at issue do not exhibit the requisite
relationship with clothing so as to render them classifiable as
clothing accessories under heading 6117, HTSUSA.
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Although the Explanatory Notes (EN) to heading 6117, HTSUSA,
part 7, expressly include kneebands as classifiable under this
heading, Customs notes that kneebands and articles similar in
function (i.e., articles which provide warmth and support) will
only be classifiable under this heading provided that they may
also be properly considered to be "clothing accessories" as the
legal terms of the heading require. See HRL 089768 dated
September 13, 1991.
Heading 6307, HTSUSA, provides for other made up articles
not specifically provided for elsewhere. As the articles at
issue are not provided for elsewhere in the Nomenclature, and
they are made up textile articles, they are properly classifiable
under this provision.
HOLDING:
The submitted samples are classifiable under subheading
6307.90.9490, HTSUSA, which provides for other made up articles:
other: other ... other, dutiable at a rate of 7% ad valorem.
There is no textile visa category associated with this
classification at this time.
In order to ensure uniformity in Customs' classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), HRL 086378
is revoked to reflect the above classification effective with the
date of this letter. If, after your review, you disagree with
the legal basis for our decision, we invite you to submit any
arguments you may have with respect to this matter. Any
submission you wish to make should be received within 30 days of
the date of this letter.
This revocation is not retroactive. However, HRL 086378
will not be valid for importations of the subject merchandise
arriving in the United States after the date of this notice. We
recognize that pending transactions may be adversely affected
(i.e., merchandise previously ordered and arriving in the United
States subsequent to this revocation will be classified
accordingly). If it can be shown that you relied on HRL 086378
to your detriment, you may apply to this office for relief.
However, you should be aware that in some instances involving
import restraints, such relief may require separate approvals
from other agencies.
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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, your client should contact its
local Customs office prior to importing the merchandise to
determine the current applicability of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division