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HQ 965046

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January 23, 2002

CLA-2 RR:CR:TE 965046 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.98.89

Mr. Fernando Trueba
Trueba-Saldivar Customs Brokers
6930 Market Street, Suite H6
El Paso, Texas 79915

RE: Classification request of a Chase Ergonomics back support

Dear Mr. Trueba:

This letter is in response to your letter dated April 19, 2001 on behalf of your client, Chase Ergonomics, to the National Commodity Specialist Division, in which you requested a tariff classification ruling of a Chase Ergonomics back support under the Harmonized Tariff Schedule of the United States (HTSUS). In addition, you are requesting our determination as to whether the merchandise may be imported under the North American Free Trade Agreement (NAFTA) preferential rate.

Your letter along with a sample was forwarded to this office for our reply.

FACTS:

Your letter dated April 19, 2001 indicated that the back supports will be assembled with 45% nylon, 5% spandex, 30% polyester and 20% rubber fabric. The country of origin of the fabric is the United States. The fabric will be cut into component pieces in the United States and assembled with other components into the back supports in Mexico.

In your faxed letter dated January 9, 2002, you informed us that the yarn and the fabric are of US origin.

The subject merchandise contains four 9” vertical stays that are sewn onto the back interior portion, an adjustable two-stage hook and loop closure system, and non-removable, adjustable knit elasticized suspenders.

The belt is constructed of man-made fiber knit fabric. Both ends of the belt are constructed with hook and loop fabric for fastening. Sewn onto the back portion of the support and extending around the sides and front are two criss-crossing straps of elastic fabric that have hook and loop fabric on the end.

In your letter, you seek confirmation that the above-described manufacturing process qualifies the subject merchandise for a preferential rate under NAFTA.

ISSUE: Whether the Chase Ergonomic back support is classifiable as an orthopedic appliance 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.

Whether the subject back support is eligible for NAFTA preferential treatment.

LAW AND ANALYSIS:

Classification

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, 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
6307.90.98.89 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: 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 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 article is composed of nylon, spandex, polyester fabric and latex rubber. Its support is not derived solely from its elasticity, but also from the stays. 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 fabric or bands of various widths. Id.

The instant article has plastic vertical stays, but does not contain rigid parts or pieces of fabric or bands. After considering the article’s functionality in the context of EN 90.21(I)(11), we find the merchandise does not provide the same level of support as orthopedic devices of heading 9021 since it fails to provide post-surgical support to an organ, or prevents anatomical deformities.

Therefore, as it 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 instant article 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.

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 articles are not ejusdem generis within the enumerated articles of either headings 9021, 6117 or 6212, HTSUS, and as indicated by EN 63.07, they are within the scope of heading 6307.

Therefore, as there is no other tariff provision that 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. 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.

II. NAFTA eligibility

The second issue is whether the back support is subject to duty-free treatment under the NAFTA pursuant to US General Note 12, HTSUS, which incorporates Article 401, of the NAFTA within the HTSUS. Note 12(b) provides, in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--
they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or they have been transformed in the territory of Canada, Mexico and/or the United States so that—
except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r),(s) and (t) of this note or the rules set forth therein, or, the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials.

In your January 9, 2002 correspondence, you provided supplemental information pertaining to the subject article’s eligibility for NAFTA preference. In that letter, you indicated that the yarn and fabric are of US origin. However, this evidence is insufficient to establish the origin of the article’s fibers. Therefore, based on this evidence, we cannot conclude that the instant article (including the stays) is “wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States” within the meaning of General Note 12(b)(i), HTSUS.

We have determined that the merchandise, at GRI 1, is classifiable in heading 6307, HTSUS. Although the goods do not qualify for NAFTA preference under General Notes 12(b)(i), we consider General Note 12(b)(ii). We refer to the tariff shift rule for heading 6307, General Note 12(t), which states:

A change to headings 6304 through 6310 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapters 54 through 55, or headings 5801 through 5802 or 6001 through 6002, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

In this instance, the merchandise is composed primarily of man-made materials: 45% nylon, 5% spandex, 30% polyester and 20% rubber. Man-made filaments and fibers, which are provided in the tariff in Chapters 54 to 55, are also exceptions to the General Note 12(t) tariff shift rule. Therefore, as Customs does not know the origin of the man-made fibers or filaments, we cannot determine eligibility for NAFTA preferential treatment pursuant to General Note 12(b)(ii).

Further, due to insufficient evidence (as previously discussed), we cannot conclude that the article is “entirely produced in the territory of Canada, Mexico and/or the United States exclusively from originating materials” as provided in General Note 12(b)(iii), HTSUS.

In this instance, although the back support fabric and yarn is of US origin, we have no information about the origin of the fibers or filaments that form the yarn. Thus, without this information, we are unable to determine whether the instant article qualifies for NAFTA preferential treatment pursuant to General Note 12b. If you desire further review of whether the instant article is eligible for NAFTA preference, please write: Director, National Commodity Specialist Division, United States Customs Service, ATTN: CIE Ruling Request, 1 Penn Plaza, 10th Floor, New York, NY 10119.

III. Subheading 9802.00.90 applicability

Although Customs does not have sufficient information to make a determination as to whether the instant article is eligible under General Note 12 of the HTSUS, the information provided is sufficient to examine the article’s eligibility under subheading 9802.00.90, HTSUS.

Subheading 9802.00.90, HTSUS, was created to provide for the duty-free entry of: [t]extile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, provided that such fabric components, in whole or in part, (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process; provided that goods classifiable in chapters 61, 62 or 63 may have been subject to bleaching, garment dyeing, stone-washing, acid-washing or perma-pressing after assembly as provided for herein.

Subheading 9802.00.90, HTSUS, was created to implement Appendix 2.4 of Annex 300-B of the NAFTA. It provides, in pertinent part, that:

On January 1, 1994, the U.S. shall eliminate customs duties on textile and apparel goods that are assembled in Mexico from fabrics wholly formed and cut in the United States and exported from and re-imported into the United States under:

(a) U.S. tariff item 9802.00.80.10; or
(b) Chapter 61, 62, or 63 if, after such assembly, those goods that would have qualified for treatment under 9802.00.80.10 have been subject to bleaching, garment dyeing, stonewashing, acid-washing, or perma-pressing.

Thereafter, the U.S. shall not adopt or maintain any customs duties on textile and apparel goods of Mexico that satisfy the requirements of any successor provision to U.S. tariff item 9802.00.80.10.

In this instance, you claim that the merchandise is made from US fabric which is cut in the US and assembled in Mexico. Although Customs is unable to determine whether the back support qualifies for NAFTA preferential treatment under General Note 12, HTSUS, the manufacturing process, as described in your request, meets the terms of subheading 9802.00.90, HTSUS, which qualifies the merchandise for duty-free treatment upon return to the US.

HOLDING:

At GRI 1, the Chase Ergonomics back support is classifiable as an “other made up articleotherother” within subheading 6307.90.98.89, HTSUS. The general column one duty rate is seven percent ad valorem. However, the merchandise qualifies for duty-free treatment under subheading 9802.00.90, HTSUS.

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

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See also:

• Tariff No.: 6307.90.98 - National flags and other made-up articles of textile materials, nesoi
• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.