CLA-2 CO:R:C:T 952568 CAB
Mr. Donald L. Mann
Duro-Med Industries, Inc.
301 Lodi Street
Hackensack, NJ 07602
RE: Modification of Pre-Classification (PC) 875982; Heading
6307; Heading 6212; back, knee, and ankle supports
Dear Mr. Mann:
This letter is in response to your inquiry of September 9,
1992, requesting reconsideration of Pre-Classification (PC)
875982. No samples were submitted for examination.
FACTS:
The articles at issue are depicted in a submitted copy of
Duro-Med's 1992 catalog. Style 6902, a back support, described
as a "Neoprene Sacro-Support" wraps around the lower back;
contains an adjustable criss-cross rear design; and has a velcro
means of closure. Style 6902 is manufactured in sizes small,
medium, and large. The rear of the back support measures ten
inches in length while the front of the article measures six
inches in length. The catalog markets Style 6902 as a back
support that primarily reflects body heat, improves circulation,
protects injured areas, and acts as a comfort to the wearer.
Styles 6904, 6906, and 6055, are all knee braces used for
support. The articles are marketed as a "Neoprene Knee Brace", a
"Neoprene Wrap-Around Knee Brace", and a "Deluxe Knee Brace",
respectively. Style 6904 contains a hinged support bar that is
twelve inches in length and has a size range of small, medium,
and large. Style 6906 is marketed as an item that is
appropriately used for sprains, inflammation and bursitis;
produced in sizes regular and large; is nine inches long; has a
velcro closure; and contains a support pad. Style 6055 contains
a U-shape support pad, an open area around the knee joint, and is
primarily used for strains, sprains, inflammation, and bursitis.
Style 6908 described in the catalog as a "Neoprene Wrap-
Around Ankle Brace" contains a velcro closure, is constructed so
that the heel area is left open, and ranges in size from regular
to large. The article is advertised as product that is
appropriately used for sprains, arthritis, and tendonitis.
ISSUE:
Whether the merchandise in question is classifiable in
Heading 6212, HTSUSA, which provides for body supporting
garments, or in Heading 9021, as an orthopedic device, or in
Heading 6307, HTSUSA, as an other made up article?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's, taken in order.
The articles at issue are potentially classifiable in
various headings. One possible heading is Heading 6212, which
provides for brassieres, girdles, corsets, braces, suspenders,
garters and similar articles. Another 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. Finally,
Heading 6307, HTSUSA, which provides for other made up articles,
is the other potentially applicable heading for the articles in
question.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), although not legally binding,
are the official interpretation of the tariff at the
international level. The EN to Heading 9021 state the following:
This 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).
You contend that the merchandise in question is properly
classifiable in Heading 9021. The catalog you submitted
specifically states that Styles 6902, 6904, 6906, and 6908 are
constructed of neoprene, a form of rubber, which provides
support to the wearer because of its elasticity. Finally, the EN
to Heading 9021, HTSUSA, specifically state that textile support
articles akin to the articles at issue are not provided for in
the heading.
The EN to Heading 6212, HTSUSA, state in pertinent part:
This heading covers articles of a kind designed for wear as
body-supporting garments or as supports for certain other
articles of apparel, and parts thereof...
In HRL 952390 dated December 16, 1992, Customs made a
determination as to what type of support articles are
specifically provided for in Heading 6212, HTSUSA. That ruling
concluded:
Stated simply, merchandise similar to the subject articles,
is classifiable as belts of 6212, HTSUSA, if it functions
with a dual purpose, in providing:
1. support for the body, or support for certain articles of
apparel; and
2. a construction that allows the belt to be worn
comfortably next to the wearer's skin, under other
garments
This is the case for example, for such articles such as the
brassieres, girdles, corset-belts, suspender-belts, hygienic
belts, corrective belts, etc.
Style 6902, a support article for the lower back, is similar
to the enumerated articles provided for in Heading 6212, HTSUSA,
and it also meets the dual requirements listed in HRL 952390.
The article in question is marketed and constructed as a product
to bolster the lower back. Also, a principal function of the
article at issue is to reflect body heat which would be less
effective if worn over other garments. Therefore, it appears
that Style 6902 is designed to be worn next to the wearer's skin
and not as an outerwear garment. Accordingly, PC 875982 properly
classified Style 6902 in Heading 6212, HTSUSA.
The EN to 6307, HTSUSA, expresses the following:
This heading covers made up articles of any textile material
which are not included more specifically in other headings
of Section XI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(27) Support articles of the kind referred to in Note 1(b)
to Chapter 90 for joints (e.g. knees, ankles, elbows or
wrists) or muscles (e.g. thigh muscles), other than those
falling in other headings of Section XI.
The EN to Heading 6307, HTSUSA, specifically provide for
items such as Styles 6904, 6906, 6908. And as these items are
made up textile articles not more specifically provided for
elsewhere in the tariff, they are properly classifiable in the
provision.
HOLDING:
PC 875982 correctly classified Style 6902 in subheading
6212.90.0030, HTSUSA, which provides for brassieres, girdles,
corsets, braces, suspenders, garters and similar articles. The
applicable rate of duty is 7 percent ad valorem, and the textile
restraint category is 659. Style 6904, 6906, 6908, and 6055 are
properly classifiable in subheading 6307.90.9986, HTSUSA, under
the provision for other made up articles. The applicable rate of
duty is 7 percent ad valorem.
In order to ensure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are modifying PC
875982 to reflect the above classification effective with the
date of this letter. However, if after your review, you disagree
with the legal basis for our decision, we invite you to submit
any arguments you might have with respect to this matter for our
review. Any submission you wish to make should be received
within thirty (30) days of the date of this letter.
This notice to you should be considered a modification of PC
875982 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to PC 875982 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling. However, for the purposes of
future transactions of merchandise of this type, PC 875982 will
not be valid precedent. We recognize that pending transactions
may be adversely affected by this modification, in that current
contracts for importations arriving at a port subsequent to this
decision will be classified pursuant to it. If such a situation
arises, you may at your discretion, notify this office and apply
for such relief from the binding effects as may be warranted by
the circumstances. However, please be advised that in some
instances involving import restraints, such relief may require
separate approvals from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division