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HQ 956386





October 17, 1994

CLA-2 CO:R:C:M 956386 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.99

District Director of Customs
U.S. Customs Service
110 South 4th Street
Room 154
Minneapolis, MN 55401

RE: Protest 3501-94-100014; Orthopedic backsling; Backsling, orthopedic; HRL's 081229,081639,955887

Dear District Director:

This is in response to Protest 3501-94-100014, covering a shipment of orthopedic back slings produced in China.

FACTS:

The merchandise involved is a back support system marketed as the "Back-Up." It consists of a textile-covered foamed plastic back pad and similar but smaller knee pads. The back pad is held in place against the lower back area while a user is in a sitting position by means of textile straps and plastic buckles attached to the knee pads. The purpose is stated to reduce back strain and fatigue while promoting good posture for persons who spend time sitting at computer terminals or in similar circumstances where the back of the chair is not ordinarily used. The instructions caution against use for persons with actual back disabilities without first consulting a physician.

The entry covering the merchandise was liquidated on November 26, 1993, under subheading 6307.90.99, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other made up textile articles. The protest was timely filed on January 24, 1994.

The protestant claims that the merchandise is properly classifiable under subheading 9021.90.80, HTSUS, which provides for orthopedic appliances, other, other.

ISSUE:

Is the back sling an orthopedic appliance for tariff purposes?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined 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 [the remaining GRI's]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

The competing provisions read, as follows:

6307 Other made up articles, including dress patterns

6307.90 Other:

6307.90.99 Other. . . . . . .

9021 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:

9021.19 Other:

9021.19.85 Other. . . . . .

9021.90 Other:

9021.90.80 Other. . . . . .

Protestant's claim for classification under subheading 9021.90.80, HTSUS, appears to be erroneous. If we were to consider the "Back-Up" to be orthopedic, we would classify it under subheading 9021.19.85, HTSUS, which provides for other orthopedic appliances. Subheading 9021.90.80, HTSUS, covers other appliances which are worn or carried or implanted in the body to compensate for a defect or disability.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN (V) to heading 90.21 at page 1499, lists examples of articles to be included under heading 9021, HTSUS, as follows:

OTHER APPLIANCES WHICH ARE WORN OR CARRIED, OR IMPLANTED IN THE BODY,
TO COMPENSATE FOR A DEFECT OR DISABILITY

This group includes:

(1) Speech-aids for persons having lost the use of their vocal cords as a result of an injury or a surgical operation. . . .

(2) Pacemakers for stimulating defective heart muscles. . .

(3) Electronic aids for the blind. . . .

(4) Appliances implanted in the body, used to support or replace the chemical function of certain organs (e.g. secretion of insulin).

There is no indication that protestant is claiming that the "Back-Up" is similar to the above-listed articles. Therefore, we assume that his claim is for classification under subheading 9021.19.85, HTSUS.

With the exception of the three new studies submitted by the protestant, we believe that Headquarters Ruling Letters (HRL's) 081229, 081639 and 955887 dated November 24, 1987, August 25, 1989, and August 4, 1994, have already responded to protestant's contentions.

In introducing the three studies, protestant states the following:

While the studies were not specifically designed to prove the Nada-Chair support can be used to 1) prevent or correct bodily deformity and 2) support or hold organs following an illness or operation, it can be easily deduced from these studies that the product does indeed fulfill these requirements.

In the Lowenstein, Patterson and Shuke study, "all subjects were volunteers without low back pain." The conclusion of that study is stated as follows:

Our study showed that when sitting at a desk and writing, the Nada-Chair better approximated the standing lumbar curve than did the CC [Conventional Chair]. Also our results showed that more subjects exhibited extension than flexion in the Nada-Chair than in the CC. This promotes correct sitting posture. Although further research needs to be done, our study suggests that the Nada-Chair can be recommended by physical therapists when lumbar extension in sitting is indicated for the prevention of lower back pain.

The conclusion of the Vink and Douwes study while stating that less discomfort is experienced in the back when sitting with the "Back-Up" also points to some negative aspects of the device.

The summary to the Cram and Vinitzky study states in part:

Thus far, the data presented above suggest that the Back-Up chair clearly provides the greatest amount of support to the pelvis and lower back. Thereby the Back-Up chair gives rise to the least amount of fatigue in the lumbar region in general while both the Balans and the Office chair are associated with an increase in energy expenditure and fatigue in the low back muscles.

The above studies deal in posture, muscle fatigue and discomfort. Only the Lowenstein study goes so far as to carefully suggest that the device could be recommended in certain cases by physical therapists for the prevention of lower back pain. Nevertheless we find nothing in these studies to support protestant's claim that the "Back-Up" should be classified as an orthopedic appliance.

HOLDING:

The orthopedic back sling is not considered an orthopedic appliance for tariff purposes.

The "Back-Up" is dutiable at the rate of 7% ad valorem under subheading 6307.90.99. HTSUS.

The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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