CLA-2 RR:CR:TE 962702 gah
Port Director
U.S. Customs Service
700 Doug Davis Drive
Atlanta, Georgia 30054
RE: Protest 1704-98-100260
Dear Port Director:
This is a decision on protest 1704-98-100260 filed by counsel on behalf of Coloplast Corp. on February 18, 1999, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of mastectomy brassieres. In preparing this decision, consideration was given to arguments presented by counsel and company officials in a meeting on December 6, 1999, and in submissions made on February 18 and June 11, 1999 and February 4, 2000.
FACTS:
The merchandise at issue is Amoena brand mastectomy brassieres, produced by Coloplast Corporation. Style 2114 is in chief weight of man-made fibers. The bras are assembled in Costa Rica of U.S. made fabricated components. There are 12 to 15 styles available, all constructed in a similar manner. The bras are marketed to women following single or double mastectomy surgery through specialty stores.
The bras feature two soft panels that face the inside of each cup with openings on the side to insert a breast prosthesis. The panels thus are next to the skin and take the form of the woman’s breast or “line” the breast form. The panel is knit of 90 percent cotton and 10 percent spandex. Style 2114 has a bottom edge reinforced with one inch wide elastic, 1/4 inch elastic reinforcing the neck and armhole edge coming together into 3/4 inch wide straps, a two inch wide back closure with three hooks and eyes adjustable to three positions. Aside from the pockets for the breast forms, the bra appears similar to a bra with extra support.
The artificial breast is not imported, and is sold with a fabric casing for the prosthesis.
ISSUE:
Is the mastectomy bra properly classified in heading 6212 which provides for brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted, or in heading 9021, which provides for 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?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRI). 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.
Chapter 90 note 1(b) excludes from chapter 90 the following:
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);
The term support means to bear the weight of, especially from below, or to hold in position; prevent from falling, sinking, or slipping. The American Heritage Dictionary 1293 (1982). The term organ is defined as a somewhat independent part of the body that performs a special function. Dorland’s Illustrated Medical Dictionary 1189 (1994). The brassiere provides a pocket for the carrying of an artificial organ of the body, a breast form, but is clearly identifiable as a brassiere, commonly known as a body-supporting garment, made entirely of textile materials. The brassiere’s support to the breast comes from the elasticity of the substantial bottom band and the straps, the spandex in the pocket and elastic elsewhere in the overall construction.
Counsel argues that this legal note was intended to exclude only articles made entirely of elastic. While the legal note gives examples that would suggest this, the examples are not exhaustive. Moreover, the legal text is not that restrictive. Rather, it excludes textile support articles whose intended function is derived solely from their elasticity. While the instant article contains fabrics other than elastic, the breast form stays in place by virtue of the elastic. The legal note at issue does not say that the fit and form of the article cannot come from sewing pieces of fabric, elastic or otherwise, together. Heading 6212 is devoted to such articles, the majority of which are not mentioned as exemplars.
The intended effect of this article is to hold and support, e.g., one real breast and one artificial breast in place against the chest. Except for the hook and eye closure, the support provided to the breasts, real or artificial, is derived solely from the elasticity. Although the pocket appears to “carry” the artificial form when the bra is not on the body, it is more accurately a comfort and convenience. When the bra is worn, the substantial elasticity of the garment keeps the breast form in place, whether or not it is in the pocket. In addition, the convenience afforded by the pocket is due to the spandex, an elastomeric fiber, in the knit fabric. Without the spandex, the pocket could not be constructed in a form-fitting manner and still stretch enough to take on the three dimensional breast form.
Therefore, the support and holding power of the bra is derived solely from its elasticity, and the product is excluded by note 1(b) from chapter 90, and classifiable in section XI. Classification of the bra in heading 9021 as a part or accessory of the artificial body part is precluded.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989).
Heading 6212 covers brassieres, eo nominee. The EN to the heading states that the heading covers articles of a kind designed for wear as body supporting garments, among other things. The EN specifies that brassieres of all kinds are included. This shows the clear intent of the Harmonized System drafters to capture brassieres for special purposes, if they are constructed as brassieres, within heading 6212. Legal note 1(b) to chapter 90 cannot be read in contradiction to this intent. The instant garment is specifically described as such a body-supporting garment. It remains identifiable as a brassiere by its very form and construction, even though for special circumstances. Counsel argues that the instant bra is constructed differently in significant ways so that it provides support from the top, through the straps, rather than from under the breast area upward. We disagree, in that the elastic support in the bra is substantial along its lower edge, clearly working with the rest of the construction to keep the breast form in place.
Heading 9021, among other things, covers artificial parts of the body. The artificial breast form is specifically described therein. Counsel argues that the mastectomy brassiere should be classified as a part or accessory of the breast form, within the meaning of chapter 90 note 2(b), because it is used solely with the breast form. Because we find that note 1(b) excludes the product from consideration, note 2 to chapter 90 is not applicable.
Counsel argues that the mastectomy bra is essential to the woman wearing it in maintaining appearance, shape and balance through the chest, shoulders and spine. Counsel notes that Medicare and medical insurance companies provide reimbursement for mastectomy bras and breast forms. Further, some state tax codes define mastectomy bras as part of the breast prosthesis. These facts are cited as evidence that the mastectomy bra is an essential component of the breast prosthesis. We are unable to place importance on these claims, because note 1(b) excludes the brassieres from consideration as parts of artificial parts of the body. Further, Customs is charged with interpreting the tariff meaning of terms taking into account legal precedent, statutory construction, legislative history and the like related to the tariff. The statutory meaning of a term in one area of the law does not necessarily have any impact in another area. See HQ 955010, dated December 14, 1993, affirmed in HQ 955887, dated August 4, 1994.
The instant article is completely and specifically described as a brassiere. Customs has previously classified mastectomy brassieres as brassieres. NY 839139, dated April 27, 1989, affirmed in HQ 556090, dated November 8, 1991, and NY A81553 to Coloplast, dated April 26, 1996. In addition, we have classified nursing bras with pockets for nursing pads, and sports bras with pockets for chest protectors as still within the heading 6212 description of brassieres. NY 854729, dated September 28, 1990 and NY 898336, dated June 27, 1994. We have found that a mastectomy swimsuit with pockets for artificial breast forms remained specifically described as a swimsuit. HQ 951293, dated April 7, 1992. Counsel cites dicta in several rulings in support of classifying the instant article as a part of an orthopedic appliance. We do not believe any of those rulings are on point in the instant matter. We find that the instant mastectomy bra is classified at GRI 1 as a brassiere of heading 6212.
Lastly, counsel notes that Canada classifies the Ameona brassiere in subheading 6212.10, but provides them a special duty free status thereunder. A classification decision of this product made by another country is instructive but not binding on US Customs. We note that we are in agreement with Canada on the interpretation of the international nomenclature that the instant article is classified as a brassiere. As to the possibility of duty free status granted the product, US Customs administers and interprets the HTSUS. Legal provisions for duty rates are set by Congress.
HOLDING:
The Amoena mastectomy brassieres are classifiable in subheading 6212.10.9020, HTSUSA, which provides for brassieres, other, other, of man-made fibers, dutiable at 17.4 percent ad valorem and carrying quota category 649.
The protest should be denied in full, as set forth above. In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to counsel for the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings
will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division