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HQ 964182




October 11, 2001

CLA-2 RR:CR:TE 964182 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.99

Mr. Tim Parsons,
Parsons Trading
5 Thunderbird Drive
Novato, CA 94949-5883

RE: Ruling request of a CybertechTM back brace

Dear Mr. Parsons:

This letter is in response to your letter dated April 4, 2000 to the National Commodity Specialist Division, in which you requested a tariff classification ruling of a Cybertech™ Mechanical Advantage Orthoses back brace under the Harmonized Tariff Schedule of the United States (HTSUS).

Your letter was forwarded to this office for our reply. We regret the delay in responding.

FACTS:

Designed by an orthopedic surgeon and manufactured in China, the Cybertech™ Mechanical Advantage Orthoses

An “orthoses” is a support or brace for weak or ineffective joints or muscles. See Merriam-Webster’s New Collegiate Dictionary (10th Edition, 1999) at 822. is created to be worn over clothing by patients who have severe spinal-related lower back ailments.

Its composition includes two plastic vertical splints that parallel the spine with an adjustable compression system that provides adjustable paraspinal support along the lateral aspect of the spinal column. The sides and front are composed of breathable mesh nylon fabric that is designed to provide air circulation to the body. The nylon fabric is partially covered by Velcro-like material that allows fastening the article around the waist.

Two hard plastic splints are attached over a semi-firm plastic board that is tapered for comfort. A long cord is attached to the left splint and connects to a “hook and loop” pulley that provides a means of adjustment around the waist. The manufacturer’s brochure describes the instant article as for use to:

“increase patient compliance by maximizing abdominal compression, ease of donning/doffing, instant and effortless full range adjustment, breathe-ability for better air circulation next to the body and increased comfort while maximizing support of anatomical structures required for indications of use.”

The manufacturer anticipates that the article will be retailed through clinics, hospitals and medical/drug stores. The manufacturer also creates this article in different colors and sizes.

ISSUE: Whether the Cybertech™ Mechanical Advantage Orthoses is classifiable as an orthopedic appliance within heading 9021, as other made up clothing accessory in heading 6117, a body supporting garment within 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, 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 Appliance

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).”

The Cybertech™ Mechanical Advantage Orthoses is comprised of elastic and nylon mesh fabric. Its support is not derived solely from its elasticity. Therefore, legal Note 1(b) to Chapter 90 does not apply, and it is potentially classifiable in heading 9021 as an orthopedic appliance.

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.

The instant article has plastic vertical stays. The manufacturer states that the article has a patented pulley system that closes with “one-hand adjustment, and maximum compression six times as great as that of traditional lumbar support orthoses.” However, we find that this article does not provide the same level of support as orthopedic devices of heading 9021, because it does not provide post-surgical support to an organ, nor prevents anatomical deformities.

Therefore, as the instant article is not within the class or kind of goods identifiable as orthopedic appliances of heading 9021, it is 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 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 Cybertech™ is not a “garment” that supports the body, nor an article that supports an article of clothing. Therefore, it is 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, it is not an article that “accessorizes” clothing. It is not worn directly next to the skin to support the body, nor does it 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 article is not ejusdem generis with the enumerated articles of either headings 9021, 6117 or 6212, HTSUS, and as indicated by EN 63.07, is 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 article.

HOLDING:

At GRI 1, the Cybertech™ Mechanical Advantage Orthoses is classifiable as an “other made up articleotherother” within subheading 6307.90.99, HTSUS.

Sincerely,

John Durant, Director

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