CLA-2 RR:CR:TE 962962 TF
Mr. Christopher T. Wyffels
Ergodyne Corporation
1410 Energy Park Drive, Suite One
Saint Paul, MN 55108
RE: Classification request of Ergodyne® Proflex® Back Supports (Models 100 & 1500)
Dear Mr. Wyffels:
This letter is in response to your letter dated May 24, 1999 to the National Commodity Specialist Division, in which you requested a tariff classification ruling of Ergodyne® Proflex® Back Supports (Models 100 & 1500) under the Harmonized Tariff Schedule of the United States (HTSUS).
Your letter along with two samples were forwarded to this office for our reply. We regret the delay in responding.
FACTS:
Both the ProFlex® back supports are assembled in Mexico and both articles contain patented Sticky Fingers® vertical stays that are sewn onto the back interior portion. Each plastic stay provides improved support, comfort and performance.
The manufacturer describes the merchandise as practical, effective supplements to a comprehensive back injury program. The manufacturer also contends that the products provide lower back and abdominal support, and serves as a reminder to wearers to lift properly.
Measuring about 7 inches in width, the Model 100 is described in the manufacturer’s brochure as a standard back support that is available in small, medium, large and extra large sizes. The belt is constructed of an openwork man-made fiber knit fabric. Both ends of the belt are constructed of wide pieces of hook and loop fastener material. Attached to the other side of the belt are two pieces of wide elastic whose length may be adjusted on the hook and loop fastener material. The knit fabric also has a patented v-shape design that hugs the body for secure comfort. Each of the stays are sewn horizontally onto the knit material. The Model 100 is comprised of a two-stage closure system that is made of joining 5-inch wide hook and loop flaps that adjust for the “desired level of tension”. It also has adjustable 1.25-inch knit elasticized suspenders to provide improved comfort and exact fit.
With the back portion measuring 8 inches in width, and 4 inches in the front, the Model 1500 is composed of two layers of man-made fiber woven fabric exterior with cellular foam padding between them. The manufacturer’s brochure describes this merchandise as a specialty back support that provides firm, lower back and abdominal support for workers who perform repetitive, over the head lifting. It has a contoured shape that incorporates a weightlifter-style to hug the wearer’s body and lessen the risk of hyperextension associated with overhead lifts. The interior is comprised of cellular foam and a horizontal lumbar pad that conforms to the back’s natural curve for greater movement, extra support and comfort. Two stays are also incorporated for improved support, comfort, and reduced back support ride-up. Unlike the Model 100 that has some stretch, Model 1500 does not; rather it has a single-stage adjustable hook and loop to provide correct fit for the user through a plastic buckle.
ISSUE:
Whether the Ergodyne® Proflex® Back Supports (Models 100 & 1500) are classifiable as orthopedic appliances in heading 9021; as other made up clothing accessories in heading 6117; as body supporting garments in heading 6212; or as other made up articles in heading 6307, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. Where goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.
Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. We refer specifically to the Explanatory Notes, which govern headings 6117, 9021, 6212, and 6307, HTSUS. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6117 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212.
Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
Other
Other
6307.90 Other made up articles, including dress patterns:
Other
6307.90.99.89 Other
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:
Artificial joints and other orthopedic or fracture appliances; parts and accessories thereof:
9021.90 Other
GRI 1 provides that an article is classified 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 GRIs 2 through 6.
Orthopedic Appliances
Heading 9021, HTSUS, provides for, among other things, orthopedic appliances, including crutches, surgical belts and trusses. Chapter Note 1(b) to Chapter 90 states:
“[T]his 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).”
Model 100 derives its support entirely from elasticity, and is therefore excluded by Note 1(b) from Chapter 90. Model 1500 derives its support function from the shape of the belt and fastenings of the belt. Therefore, legal Note 1(b) to Chapter 90 does not apply, and it remains potentially classifiable in heading 9021 as orthopedic appliances.
According to the EN to the heading, an article may be classifiable as an orthopedic appliance within heading 9021 if it either:
Prevents or corrects bodily deformities; or
Supports or holds organs following an illness or operation.
EN 90.21(I)(11) provides for orthopedic appliances that are designed to correct scoliosis and curvature of the spine, as well as all medical or surgical corsets and belts (including certain supporting belts). Id. These products are distinguished from ordinary corsets and belts by their composition which consist of:
Special pads, springs, etc., adjustable to fit the patient;
The materials of which they are made (leather, metal, plastics, etc.); or;
The presence of reinforced parts, rigid pieces of fabrics or bands of various widths. Id.
Model 1500 has plastic vertical stays; but does not contain rigid parts or pieces of fabric or bands. We find that it does not provide the same level of support as orthopedic devices of heading 9021 since it neither provides post-surgical support to an organ, nor prevents anatomical deformities.
Therefore, as Model 1500 is not within the class or kind of goods identifiable as orthopedic appliances of heading 9021, it is excluded from heading 9021 as well.
Other Made Up Clothing Accessory
Heading 6117, HTSUS, provides for "other made up clothing accessories"; the subheadings thereunder are based on constituent material (of cotton, of wool, etc.). An accessory is generally understood to mean an article not necessary to the functioning of the primary good; an adjunct; something subordinate or supplemental. See HQ 089581, dated November 4, 1991. Further, an accessory must relate to or exhibit some nexus with the primary article. Id.
Accessories of heading 6117 are used to enhance, adorn or compliment articles of clothing. Where articles are used principally for other purposes, they are not classified in heading 6117. The EN to heading 6117, HTSUS, indicates that "belts of all kinds" are included in the heading. In this case, we find that the heading will include belts of all kinds, provided that they may also be properly considered to be "clothing accessories."
In the opinion of this office, the article is not a clothing accessory. It does not exhibit the relationship with clothing necessary to be considered an accessory to clothing; it does not adorn or accent clothing. The principal use for this merchandise is in conjunction with supporting the wearer’s lower back as a type of brace. The subject article does not function as an accessory. Thus, it is excluded from classification in heading 6117.
Body Supporting Garment
Legal note 2 to Chapter 62 provides that Chapter 62 does not cover “orthopedic appliances, surgical belts, trusses or the like (heading 9021).” The 6212 EN (7) includes certain belts. We note that EN 62.12 provides for “articles of a kind designed for wear as body-supporting garments or as supports for certain other articles of apparel, and parts thereof.” The exemplars listed within EN 62.12 includes, inter alia:
(1) Brasseries of all kinds.
(2) Girdles and panty-girdles.
(3) Corselettes (combinations of girdles or panty-girdles and brasseries).
(4) Corsets and corset-belts. These are usually reinforced with flexible metallic, whalebone or plastic stays, and are generally fastened by lacing or by hooks.
(5) Suspender-belts, hygienic belts, suspensory bandages, suspender jock-straps, braces, suspenders, garters, shirt-sleeve supporting arm-bands and armlets.
(6) Body belts for men (including those combined with underpants).
(7) Maternity, post-pregnancy or similar supporting or corrective belts, not being orthopedic appliances of heading 90.21 (see Explanatory Note to that heading).
This EN also provides that articles of this heading may incorporate fittings and accessories of non-textile materials (e.g., metal, rubber, plastics or leather), and may be made of any textile material including knitted or crocheted fabrics (whether or not elastic).
Unlike the belts of heading 6212 listed above, the Ergodyne® Proflex® Back Supports are not “garments” that support the body, nor articles that support an article of clothing. Therefore, they are not classifiable within heading 6212. See, e.g., HQ 954124, dated July 29, 1993 (classifying an imported Philippine nylon/spandex woven wrap-around “Safety Belt” in subheading 6307.90 as it was not a form of garment, nor worn underneath other garments (although it was designed to support and prevent injury to the back).
In sum, they are not articles that “accessorizes” clothing. They are not worn directly next to the skin to support the body, nor do they support another article of clothing.
Other Made Up Article
Legal note 1 to Chapter 63 provides that “subchapter 1 applies only to made up articles, of any textile fabric.” EN 63.07 indicates that heading 6307 provides for made up articles of any textile material “which are not included more specifically in other headings of Section IX or elsewhere in the Nomenclature.” Id. at 948. As discussed above, no other more appropriate heading in the Nomenclature has been identified. EN 63.07 (27) indicates that heading 6307 provides, in pertinent part, for:
“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.” Id. at 949.
Heading 6307 is a residual provision for “other made up articles of textiles” within Section XI that are not more specifically provided elsewhere within the Tariff. In the instant case, we have determined that the subject articles are not ejusdem generis with the enumerated articles of either headings 9021, 6117 or 6212, HTSUS, and as indicated by EN 63.07, they are within the scope of heading 6307.
Therefore, as there is no [other] tariff category which covers the merchandise more specifically, we find heading 6307, which provides for “other made up articles” to be the most appropriate heading within the Tariff for classifying the subject articles.
HOLDING:
At GRI 1, the Model 100 and Model 1500 Cybertech™ Mechanical Advantage Orthoses Ergodyne® Proflex® Back Supports are classifiable as “other made up articles…other…other” within subheading 6307.90.99, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division