HQ 0950659 - Revocation of Headquarters Ruling Letter 086378 (4/9/90); classification of heat retainers; elbow, wrist, knee and back warmers; 6307, HTSUSA; not clothing accessories - United States International Trade Commision Rulings

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HQ 950659

January 21, 1992

CLA-2 CO:R:C:T 950659 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9490

Mr. Gilbert J. Hill
Gilbert J. Hill & Associates
4922 Sheridan Avenue South
Minneapolis, MN 55410

RE: Revocation of Headquarters Ruling Letter 086378 (4/9/90); classification of heat retainers; elbow, wrist, knee and back warmers; 6307, HTSUSA; not clothing accessories

Dear Mr. Hill:

On December 5, 1989, you requested a classification ruling for elbow, wrist, knee and back warmers under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Headquarters Ruling Letter (HRL) 086378, dated April 9, 1990, was issued in response to your request. Upon further review, that classification is determined to be in error.

FACTS:

The articles at issue are tubular shaped items made of 43% angora, 18% lambswool, 26% polyamid and 13% elasthan which forms a fabric of a weft knit construction. They are specially designed to fit certain body parts, i.e., wrists, elbows, knees and backs. The articles are intended for use by people afflicted with arthritis or rheumatism. The primary purpose of these articles appears to be the maintenance of localized warmth which in turn would provide greater comfort to the wearer. The wool and angora components also act to absorb perspiration and the elasticity of the items may in some cases provide support.

ISSUE:

Whether the heat retainers are classifiable under heading 6117, HTSUSA, which provides for other made up clothing accessories, or under 6307, HTSUSA, which provides for other made up articles?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that the classification shall be determined according to the terms of the headings and any relevant section or chapter notes.

Heading 6117, HTSUSA, provides for clothing accessories. There are no Legal Notes to either Chapter 61 or Section XI, HTSUSA, which expressly provide for the classification of the subject merchandise. Moreover, the term "accessory" is not defined in the tariff schedule or Explanatory Notes. Webster's New Collegiate Dictionary, (1977), defines "accessory" as a thing of secondary or subordinate importance or an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else. Customs defined accessory in Headquarters Ruling Letter (HRL) 088540, dated June 3, 1991, as an article that is related to the primary article, and intended for use solely or principally with a specific article. In heading 6117, HTSUSA, the primary article is clothing, and the accessories classifiable under this provision will be related to clothing, intended for use with clothing and of secondary importance to clothing.

The alternative heading, 6307, HTSUSA, provides for other made up textile articles. This is not a true alternative in that heading 6307 is a "basket" provision intended to classify merchandise not provided for more specifically in other headings of the Nomenclature. We must determine whether classification is proper under heading 6117, HTSUSA; if not, we will address whether classification is proper under heading 6307, HTSUSA.

The articles at issue are heat retainers designed to provide warmth and a modicum of support to individuals suffering from arthritis or sports related injuries. The heat retainers are not designed as fashion statements nor to complement articles of clothing. The heat retainers' primary function is to provide relief from pain and, as such, they are not dependent on any type of clothing to perform that role. The heat retainers do not have a secondary function in which they are intended to accessorize clothing. In fact, the use and function of the heat retainers is completely divorced from their use with clothing. The subject merchandise has no logical nexus with clothing; they neither add to clothing's beauty, convenience nor effectiveness. It is quite clear that the articles at issue do not exhibit the requisite relationship with clothing so as to render them classifiable as clothing accessories under heading 6117, HTSUSA.

Although the Explanatory Notes (EN) to heading 6117, HTSUSA, part 7, expressly include kneebands as classifiable under this heading, Customs notes that kneebands and articles similar in function (i.e., articles which provide warmth and support) will only be classifiable under this heading provided that they may also be properly considered to be "clothing accessories" as the legal terms of the heading require. See HRL 089768 dated September 13, 1991.

Heading 6307, HTSUSA, provides for other made up articles not specifically provided for elsewhere. As the articles at issue are not provided for elsewhere in the Nomenclature, and they are made up textile articles, they are properly classifiable under this provision.

HOLDING:

The submitted samples are classifiable under subheading 6307.90.9490, HTSUSA, which provides for other made up articles: other: other ... other, dutiable at a rate of 7% ad valorem. There is no textile visa category associated with this classification at this time.

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1), HRL 086378 is revoked to reflect the above classification effective with the date of this letter. If, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you may have with respect to this matter. Any submission you wish to make should be received within 30 days of the date of this letter.

This revocation is not retroactive. However, HRL 086378 will not be valid for importations of the subject merchandise arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e., merchandise previously ordered and arriving in the United States subsequent to this revocation will be classified accordingly). If it can be shown that you relied on HRL 086378 to your detriment, you may apply to this office for relief. However, you should be aware that in some instances involving import restraints, such relief may require separate approvals from other agencies.

The designated textile and apparel category may be subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), and the restraint (quota/visa) categories, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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