CLA-2 RR:CR:TE 964402 TF
Bernard Adrien,
Fritz Starber, Inc.
410 St.-Nicolas
Bureau 300
Montreal, Quebec, CANADA H2Y 2P5
RE: Classification request of Corsetti back supports
Dear Mr. Adrien:
This letter is in response to your letter dated March 9, 2000 on behalf of your client, M.I.H. International, to the National Commodity Specialist Division, in which you requested a tariff classification ruling of Corsetti back supports under the Harmonized Tariff Schedule of the United States (HTSUS).
No samples were submitted with your request.
FACTS:
Your letter dated March 9, 2000 provides information for four models: Numbers 550, 560, 565 and 555. You suggested that the four models should be classified in subheading 9021.19.85.00, HTSUSA. The classification of models 550 and 560 is addressed in HQ 964008. Therefore, we will only address the classification of models 565 and 555.
The models are composed of 80% cotton and 20% elastic knit fabric and are manufactured in Italy in small, medium, large, extra large and extra extra large.
Model 565 has six flexible steel stays and two additional rigid aluminum moldable stays at the back. It also measures 15 inches in height and is designed for a female. Model 555 is the same as Model 565 but it is designed for a male.
You indicate that the merchandise can be used only for lumbago, sciatica, ischialgia, disc complaints, spondylo-arthrosis, vertebral lumbar muscle spasm, post-surgery containment and support of the abdomen. You also state that the products are sold mostly to hospitals and specialized orthopedic retailers.
ISSUE: Whether the Corsetti back supports are classifiable as orthopedic appliances in heading 9021; as an other made up clothing accessory in heading 6117; as a body supporting garment in heading 6212; or as an other made up article 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, 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, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, 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 9021, 6117, 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
Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
6212.30.00 Corsets
6212.30.00.10 Of cotton
6307.90 Other made up articles, including dress patterns:
Other
6307.90.98.89 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:
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:
This chapter does not cover: [s]upporting 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 instant articles are composed of cotton and elastic knit fabric. Their support is not derived solely from their elasticity, but also from the stays. Therefore, legal Note 1(b) to Chapter 90 does not apply, and the goods are 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, operation or injury.
EN 90.21(I)(10) provides for appliances that correct scoliosis and curvature of the spine, as well as all medical or surgical corsets and belts (including certain supporting belts). Id. Orthopedic appliances 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 fabric or bands of various widths. Id.
The instant articles have vertical stays, and are adjustable to fit the patient by the hook and loop closure system. However, the merchandise does not contain any rigid parts or pieces of fabric or bands. Rigid is defined as: “deficient in or devoid of flexibility” and “appearing stiff and unyielding.” See Merriam Webster’s Deluxe Dictionary (10th Collegiate Edition). In the instant case, the merchandise fails to meet the terms of Note 10 of EN. 90.21 as the steel stays and elastic fabric easily bend and fold.
After considering the good’s functionality in the context of EN 90.21(I)(10), we find the merchandise does not provide the same level of support as orthopedic appliances of heading 9021 due to their lack of rigidity. They fail to provide post-surgical support to an organ, or prevent anatomical deformities. Therefore, as they are not within the class or kind of goods identifiable as orthopedic appliances of heading 9021, they are excluded from heading 9021.
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 complement 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 articles are not clothing accessories. They do not exhibit the relationship with clothing necessary to be considered accessories to clothing; they do not adorn or accent clothing. Further, their principal use is in conjunction with supporting the wearer’s lower back as a type of brace. As the merchandise does not function as an accessory, they are 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).” EN: 62.12(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 include, inter alia:
(1) Brasseries of all kinds.
(2) Girdles and panty-girdles.
(3) Corselettes (combinations of girdles or panty-girdles and brasseries).
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).
The subject merchandise, called Corsetti (of which the English translation means corset), shares the features of corsets as set forth in the Note 4 of EN 62.12 as they have a hook and loop closure system that is reinforced with steel stays and are worn next to the skin.
Our office has classified other back support articles within heading 6307, HTSUSA, which is a residual provision for “other made up articles of textiles” within Section XI that are not more specifically provided elsewhere within the tariff. See HQ 962962, dated October 11, 2001; HQ 964182, dated October 11, 2001; HQ 964864, dated October 16, 2001; HQ 964763, dated October 23, 2001. However, the instant articles are distinguishable from the back supports which were classified in heading 6307 as the instant merchandise is worn next to the skin and the heading 6307 back supports are worn over clothing. Therefore, as the instant merchandise is ejusdem generis within the enumerated articles of heading 6212, heading 6307, HTSUSA does not apply.
HOLDING:
At GRI 1, the Corsetti back supports are classifiable as corsets within subheading 6212.30.0010, HTSUSA, textile category 349, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Corsets…of cotton.” The general column one duty rate is 23.8 percent ad valorem.
The designated textile and apparel category may be subdivided into parts. If so, the 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 you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements
Sincerely,
John Durant, Director
Commercial Rulings Division