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HQ 955010


December 14, 1993

CLA-2 CO:R:C:T 955010 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

Margaret R. Polito, Esq.
Neville, Peterson & Williams
39 Broadway
New York, N.Y. 10006

RE: Lumbarjack posture aid; not in the class or kind of goods identifiable as an orthopedic device or a car accessory; proper classification is as an other made-up article

Dear Ms. Polito:

This is in regard to your letter, dated August 13, 1993, on behalf of your client, Nada-Concepts, Inc., requesting tariff classification for a posture aid to be imported from China and marketed under the trade name "Lumbarjack". A sample was sent to this office for examination and will be returned under separate cover.

FACTS:

The subject sample consists of a large belt and a long strap attached to each side of the belt. The belt is 38 inches long and six inches wide with a firm but not rigid back pad measuring 13- 1/2 inches long, and an elastic pad with velcro. Each strap is two inches wide and has two adjustable plastic buckles, a knee pouch formed by two elastic bands measuring three inches wide each, and a loop that goes over the wearer's foot. The subject item is very similar to the "Nada-Chair" back sling ruled on by Customs in 1987 (HQ 081229, dated November 24, 1987) and again in 1989 (HQ 081639, dated August 25, 1989). Those rulings held that the item did not fall in the purview of the term "orthopedic device" as used in either the former tariff schedule, TSUSA, or the present HTSUSA. In both instances the item was classified as an other made up article.

You state that the "Lumbarjack" is classifiable as an orthopedic device in heading 9021, HTSUSA. In support of this claim you state:

1. a hernia belt and sacro-iliac belt, both classified in heading 9021, HTSUSA, in HQ 556580, dated June 29, 1992, perform the identical function as the present Lumbarjack;

2. the Lumbarjack meets the requirements set out by the relevant chapter, section, and explanatory notes;

3. doctors, therapists and chiropractors endorse the effectiveness of the Lumbarjack.

Alternatively, you claim that if the Lumbarjack is determined not to be classifiable as an orthopedic device, it is classifiable as an accessory to a motor vehicle in heading 8708, HTSUSA. In support of this claim you state:

1. the Lumbarjack meets the requirements set out by the explanatory notes to heading 8708, HTSUSA;

2. the Lumbarjack is not excluded from classification in heading 8708, HTSUSA, by the relevant chapter notes;

3. NYR 852416, dated May 22, 1990 and NYR 876538, dated July 28, 1992, classifying different items as automobile accessories reflect Customs' belief that products intended for use in automobiles, but with fugitive or secondary uses are not excluded from classification in heading 8708, HTSUSA.

ISSUE:

Whether the item is classifiable as an orthopedic device in heading 9021, HTSUSA, or as an accessory to a motor vehicle in heading 8708., HTSUSA, or alternatively, as an other made up article in heading 6307, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

The article at issue is potentially classifiable in various headings. These include heading 9021, HTSUSA, as an orthopedic device, heading 8708, HTSUSA, as a part or accessory to a motor vehicle, and heading 6307, HTSUSA, as an other made up article.

Orthopedic Device

Heading 9021, HTSUSA, 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:

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 Explanatory Notes to the Harmonized Description and Coding System (EN) to heading 9021, HTSUSA, further state that orthopedic appliances are for:

(i) Preventing or correcting body deformities; or (ii) Supporting or holding organs following an illness or operation.

They include:

Appliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and belts (including certain supporting belts) characterized by:

(a) Special pads, springs, etc., adjustable to fit the patient
(b) The materials of which they are made (leather, metal, plastics, etc); or
(c) The presence of reinforced parts, rigid pieces of fabric or bands of various widths.

The special design of these articles for a particular orthopaedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold.

You state in your letter that in Customs ruling HQ 556580 a hernia belt and sacro-iliac belt with "uses identical" to the Lumbarjack, were classified in heading 9021, HTSUSA, as an orthopedic appliance. The hernia belt addressed in that ruling was constructed of tightly woven fabric, two elastic panels, two adjustable leg straps, hook and eye fasteners, adjustable buckles, lace closure, and two movable pads. The sacro-iliac belt was similarly made of a tightly woven rigid fabric with adjustable hook and eye fasteners, adjustable straps and buckles, flexible stays, reinforced rubber pad and two half-moon shaped elastic panels.

In that regard, it must be understood that the classification determination did not rest exclusively or primarily on the use of the belts in question. Both the hernia belt and sacro-iliac belt were classified as orthopedic appliances not only based on their use, but perhaps more importantly, based on their structure. Customs' decision regarding the classification of any item is based on a case by case examination of the item to be imported. In a comparison of the Lumbarjack and the belts of HQ 556580, though arguably all the belts have similar uses, they do not have similar construction.

The belts of HQ 556580 are more complex in nature and exhibit features not found in the Lumbarjack. These features are namely hook and eye fasteners, lace closure, adjustable straps (in addition to adjustable buckles) and moveable pads. In essence many of these features are constructed of other than textile material, allowing the user more flexibility in the adjustment of various parts of the belt to fit the contour of the user's own body. The Lumbarjack on the other hand, features only adjustable plastic buckles as a means of adjustment. The variety of features in the belts of HQ 556580 are characteristic of the special design the EN to heading 9021, HTSUSA, mandate for any orthopedic appliance. It is the successful combination of several features which, in effect, distinguishes an orthopedic appliance from ordinary corsets and belts.

This brings us to your second argument where you claim that the Lumbarjack satisfies the requirements of note 1(b) to chapter 90 and the EN to heading 9021, HTSUSA. Note 1(b) to chapter 90 excludes from its provisions supporting belts whose intended effect is derived solely from their elasticity. You state that the Lumbarjack is clearly within the purview of heading 9021, HTSUSA, because it "achieves its intended effect through reverse pressure generated by the wearer's knees and feet, not the elasticity of the material from which it is constructed". As was discussed above, other than the plastic buckles, the Lumbarjack is made entirely of textile materials and almost exclusively derives its effect from elasticity and though you state that the effect of the belt is achieved through the movement of the user's legs and feet, the fact still remains that the effect is a derivative of the elasticity of the belt.

Finally, you submitted letters written by therapists and doctors who have recommended the Nada-Concept products to patients who have undergone back surgery in order to relieve pain and recover the sensation of correct posture, as proof that the Lumbarjack qualifies as an orthopedic device. As was commented in HQ 081639 asserting a similar claim for a similar item:

...even if all the parties shown on the list are medical practitioners "who are presently using the Nada-Chair for medical purposes," that in itself would not meet the guidelines set forth above for orthopedic appliances.

The fact that a product is aimed at a medical market does not necessarily establish the medical nature of the product since there may be other marketing considerations involved. For example, a product for which outright medical claims or even hints of curative properties are made can command a higher price in a medical market than in a general one.

Accordingly, we are of the opinion that though the Lumbarjack demonstrates uses which are ultimately identical to those attributed to orthopedic appliances in general, namely, preventing bad posture or alleviating back pain, this does not by any means automatically qualify the item as an orthopedic appliance for tariff purposes.

Accessory to a Motor Vehicle

Heading 8708, HTSUSA, provides for parts and accessories of the motor vehicles of headings Nos. 8701 to 8705, HTSUSA. The EN to heading 8708, HTSUSA, state

This heading covers parts and accessories of the motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfil both the following conditions:

(i) They must be identifiable as being suitable for use solely or principally with the above mentioned vehicles;
and (ii) They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).

Legal Note 2(g) to Section XVII states:

The expression "parts" and "parts and accessories" do not apply to the following articles, whether or not they are identifiable as for the goods of this Section:

Articles of chapter 90;

Webster's Ninth New Collegiate Dictionary 49 (1991), defines "accessory" as:

1 a: a thing of secondary or subordinate importance b: an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else (auto accessories)...

You refer to two Customs rulings, NY 852416 and NY 876538, in support of your claim that Customs has, in the past, classified a number of products that are intended for use in automobiles but with possible fugitive or secondary uses, as accessories to a motor vehicle. NY 852416 addressed a mesh bag rear seat organizer designed to fit over the rear of the front seat of an automobile, under the headrest. NY 876538 regarded a wooden beaded car cushion with three elastic bands designed to fit around the front seat head-rest.

Though both items ultimately resulted in the optimum comfort of the driver, the former through the organization of miscellaneous material which can litter a car, and the latter by providing the driver with more physical comfort, both were designed with a vehicle in mind. Both items in those rulings can easily be distinguished from the subject Lumbarjack by the simple fact that the rear seat organizer and the car cushion (unlike the Lumbarjack) physically became a secondary aspect of the vehicle because they had the ability to be attached to the vehicle in some way.

The EN to heading 8708, HTSUSA, clearly require that the merchandise classifiable within its provisions be identifiable as being suitable for use solely or principally with vehicles. Only after this first requirement is satisfied does the second requirement come into play, i.e., that the merchandise not be excluded unless it can be identified as an article of chapter 90, HTSUSA. In this case there is no need to move to the second requirement because the Lumbarjack fails to meet the first prong of the test. As the definition of "accessory" also connotes, for an item to be recognized as such, it must be identified as something of secondary importance; only adding to the convenience or effectiveness of something else. In the case of the Lumbarjack, the effectiveness or convenience is applied directly to the wearer, not the vehicle. It is very easy to imagine the Lumberjack being used principally or solely in any sitting situation that will provide some relief to the wearer, regardless of whether or not a vehicle is involved.

Other Made Up Article

Heading 6307, HTSUSA, is a residual provision which provides for other made up articles of textiles that are not provided for more specifically elsewhere in the nomenclature. Numerous rulings have determined that similar belts, which could not be classified elsewhere in the tariff, were to be classified in this provision (See HQ 954124, dated July 29, 1993, HQ 952829, dated February 19, 1993, HQ 952841, dated January 26, 1993, and HQ 952826, dated December 16, 1992). Similarly, the Lumbarjack is classified in heading 6307, HTSUSA.

HOLDING:

The Lumbarjack is classified in subheading 6307.90.9986, which provides for, among other things, other made up articles, other, other , other. The applicable rate of duty is 7 percent ad valorem.

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

Sincerely,

John Durant, Director

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