CLA-2 CO:R:C:M 956386 DFC
District Director of Customs
U.S. Customs Service
110 South 4th Street
Room 154
Minneapolis, MN 55401
RE: Protest 3501-94-100014; Orthopedic backsling; Backsling,
orthopedic; HRL's 081229,081639,955887
Dear District Director:
This is in response to Protest 3501-94-100014, covering a
shipment of orthopedic back slings produced in China.
FACTS:
The merchandise involved is a back support system marketed
as the "Back-Up." It consists of a textile-covered foamed
plastic back pad and similar but smaller knee pads. The back pad
is held in place against the lower back area while a user is in a
sitting position by means of textile straps and plastic buckles
attached to the knee pads. The purpose is stated to reduce back
strain and fatigue while promoting good posture for persons who
spend time sitting at computer terminals or in similar
circumstances where the back of the chair is not ordinarily used.
The instructions caution against use for persons with actual back
disabilities without first consulting a physician.
The entry covering the merchandise was liquidated on
November 26, 1993, under subheading 6307.90.99, Harmonized Tariff
Schedule of the United States (HTSUS), which provides for other
made up textile articles. The protest was timely filed on
January 24, 1994.
The protestant claims that the merchandise is properly
classifiable under subheading 9021.90.80, HTSUS, which provides
for orthopedic appliances, other, other.
ISSUE:
Is the back sling an orthopedic appliance for tariff
purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUS 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, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
The competing provisions read, as follows:
6307 Other made up articles, including dress patterns
* * *
6307.90 Other:
* * *
6307.90.99 Other. . . . . . .
* * *
9021 Orthopedic appliances, including crutches,
surgical belts and trusses; splints and other
fracture appliances; artificial parts of the body;
hearing aids and other appliances which are worn
or carried, or implanted in the body, to
compensate for a defect or disability; parts and
accessories thereof:
* * *
9021.19 Other:
* * *
9021.19.85 Other. . . . . .
* * *
9021.90 Other:
* * *
9021.90.80 Other. . . . . .
Protestant's claim for classification under subheading
9021.90.80, HTSUS, appears to be erroneous. If we were to
consider the "Back-Up" to be orthopedic, we would classify it
under subheading 9021.19.85, HTSUS, which provides for other
orthopedic appliances. Subheading 9021.90.80, HTSUS, covers
other appliances which are worn or carried or implanted in the
body to compensate for a defect or disability.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to the HTSUS, although not dispositive
should be looked to for the proper interpretation of the HTSUS.
See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN (V) to
heading 90.21 at page 1499, lists examples of articles to be
included under heading 9021, HTSUS, as follows:
OTHER APPLIANCES WHICH ARE WORN OR CARRIED,
OR IMPLANTED IN THE BODY,
TO COMPENSATE FOR A DEFECT OR DISABILITY
This group includes:
(1) Speech-aids for persons having lost the use of their
vocal cords as a result of an injury or a surgical
operation. . . .
(2) Pacemakers for stimulating defective heart muscles. . .
(3) Electronic aids for the blind. . . .
(4) Appliances implanted in the body, used to support or
replace the chemical function of certain organs (e.g.
secretion of insulin).
There is no indication that protestant is claiming that the
"Back-Up" is similar to the above-listed articles. Therefore, we
assume that his claim is for classification under subheading
9021.19.85, HTSUS.
With the exception of the three new studies submitted by the
protestant, we believe that Headquarters Ruling Letters (HRL's)
081229, 081639 and 955887 dated November 24, 1987, August 25,
1989, and August 4, 1994, have already responded to protestant's
contentions.
In introducing the three studies, protestant states the
following:
While the studies were not specifically designed to
prove the Nada-Chair support can be used to 1) prevent
or correct bodily deformity and 2) support or hold
organs following an illness or operation, it can be
easily deduced from these studies that the product does
indeed fulfill these requirements.
In the Lowenstein, Patterson and Shuke study, "all subjects
were volunteers without low back pain." The conclusion of that
study is stated as follows:
Our study showed that when sitting at a desk and
writing, the Nada-Chair better approximated the
standing lumbar curve than did the CC [Conventional
Chair]. Also our results showed that more subjects
exhibited extension than flexion in the Nada-Chair than
in the CC. This promotes correct sitting posture.
Although further research needs to be done, our study
suggests that the Nada-Chair can be recommended by
physical therapists when lumbar extension in sitting is
indicated for the prevention of lower back pain.
The conclusion of the Vink and Douwes study while stating
that less discomfort is experienced in the back when sitting with
the "Back-Up" also points to some negative aspects of the device.
The summary to the Cram and Vinitzky study states in part:
Thus far, the data presented above suggest that the
Back-Up chair clearly provides the greatest amount of
support to the pelvis and lower back. Thereby the
Back-Up chair gives rise to the least amount of fatigue
in the lumbar region in general while both the Balans
and the Office chair are associated with an increase in
energy expenditure and fatigue in the low back muscles.
The above studies deal in posture, muscle fatigue and
discomfort. Only the Lowenstein study goes so far as to
carefully suggest that the device could be recommended in certain
cases by physical therapists for the prevention of lower back
pain. Nevertheless we find nothing in these studies to support
protestant's claim that the "Back-Up" should be classified as an
orthopedic appliance.
HOLDING:
The orthopedic back sling is not considered an orthopedic
appliance for tariff purposes.
The "Back-Up" is dutiable at the rate of 7% ad valorem under
subheading 6307.90.99. HTSUS.
The protest should be denied. In accordance with Section
3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division