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HQ 965061

August 12, 2002

CLA-2 RR:CR:TE 965061 TF


TARIFF NO.: 6307.90.9889

Kevin Outred, President
United Pacific, Inc.
Box 23585
Columbia, SC 29224

RE: Classification request of Thermoskin back supports

Dear Mr. Outred:

This letter is in response to your letter dated May 2, 2001 to the National Commodity Specialist Division, in which you requested a tariff classification ruling for Thermoskin back supports under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Three samples were submitted with your request.


Your letter provides information on four models: Numbers 8*227, 8*229, 8*251 and 8*267. We only have samples for model numbers 8*227, 8*229 and 8*251. Model 8*267 does not have a sample. Therefore, as a sample was not provided for this article, we will classify only the samples submitted.

The products are made in Australia of Thermoskin, which is a material that retains body heat and wicks away moisture to keep the skin dry. The Website advertisement for this product reads:

Thermoskin is a new generation pain relief retainer containing material which not only captures and retains your body heat, but also allows your skin to ventilate and remain comfortably dry. The lumbar support was developed specifically for the “weekend warrior” or more serious athletes who tend to have a higher number of sports related back problems.

Like other Thermoskin products, this pain relief product for the back raises skin temperature 2º to 3º F and provides warmth which combines to create the natural healing process of the body.

The back support merchandise is composed of three layers:
an outer layer that binds the product together; a rubberized inner layer which is claimed to provide therapy and support to help counteract tissue swelling; an inner layer that contains a Trioxin lining (a special material that features a spiral structure) to provide natural heat therapy for treatment of injury and pain for long term comfort

Model 8*227 has a hook and loop closure system and webbed textile fabric straps that are attached to the back with a buckle for closure. You indicate that this model has two types of stays, a flexible type for sleeping and a stainless steel type that is shaped by a physician or therapist to fit the user’s back. However, the instant sample does not contain any stays.

Model 8*229 is a combination of Model 8*227 and a removable pad which is fitted with hook and loop closure tabs so that it may be positioned to fit the user.

Model 8*251 has double straps to provide for locking and has a pocket sewn in the back that contains a moldable plastic insert that you indicate is made of “thermal plastic.”

Your company directly purchases the merchandise from an Australia manufacturer, United Pacific Industries. You claim that the articles, which are designed to restrict movement and or brace out the back, are sold to orthopedic, physical therapy and occupational clinics.

Customs has issued two other rulings on Thermoskin products: HQ 950470, dated January 7, 1992, which classified an elbow warmer in subheading 6307.90.9490, HTSUSA, and HQ 959764, dated October 8, 1996, which determined the country of origin of different styles of braces for the body.

ISSUE: Whether the Thermoskin back supports (Model Numbers 8*227, 8*229 and 8*251) are classifiable as orthopedic appliances 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, HTSUSA.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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, HTSUSA. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Orthopedic Appliances

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: [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 articles are composed of rubber material, Thermoskin fabric, and stays. Their support is not derived solely from their elasticity, but also from the stays. Therefore, legal Note 1(b) to Chapter 90 does not apply, and the goods are potentially classifiable in heading 9021 as orthopedic appliances.

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 parts of the body following an illness, operation, or injury.

EN 90.21(I)(10) 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. Orthopedic appliances 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 Internet advertisement of the merchandise indicates that the support articles are designed for use by serious athletes

The merchandise is described in the Internet advertisements as “developed specifically for the ‘weekend warrior’ or more serious athletes who tend to have a higher number of sports related back problems.”. They provide enhanced lumbar support by increasing the blood flow to the lumbar area, an adjustable fit for comfort due to the hook and loop system, as well as an efficient wicking away of moisture by Trioxin fabric.

However, the merchandise does not rise to the level of an orthopedic appliance of heading 9021. Although the goods are advertised and designed to support or hold the lower back following an injury, their design does not distinguish them from ordinary corsets and belts since they do not “correct[ ] scoliosis and curvature of the spine.” See Note EN 90.21(10). Further, although some of the belts contain stays (metal or plastic), none of the articles contain rigid Rigid is defined as: “deficient in or devoid of flexibility” and “appearing stiff and unyielding.” See Merriam Webster’s Deluxe Dictionary (10th Collegiate Edition). parts or pieces of fabric or bands to meet the terms of Note 10(c) of EN. 90.21, since the belts in their entirety lack rigidity as they easily bend and fold. Consequently, we do not find the belts to be indistinguishable from other ordinary corsets and belts that may also be designed to support or hold.

After considering the goods’ functionality in the context of EN 90.21(I)(10), we find that the goods do not provide the same level of support as orthopedic appliances of heading 9021 since they lack rigidity and also fail to provide post-surgical support to the body or prevent anatomical deformities. Therefore, as they are not within the class or kind of goods identifiable as orthopedic appliances of heading 9021, they are excluded from heading 9021.

Other Made Up Clothing Accessory

Heading 6117, HTSUSA, 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 complement articles of clothing. Where articles are used principally for other purposes, they are not classified in heading 6117. The EN to heading 6117, HTSUSA, 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.”

Customs previously classified a Thermoskin elbow warmer in HQ 950470, dated January 7, 1992, and considered whether heading 6117 was appropriate. We find the elbow warmer of HQ 950470 and the instant back supports share similarities in that both are:
designed to provide light compression, prolonged heat treatment to injured or affected parts of the body; designed to provide modicum of support to individuals suffering from sporting injuries; composed of neoprene rubber laminated with nylon and knitted nylon pile fabric.

Therefore, we find the analysis of HQ 950470 applies as to whether heading 6117 is appropriate for classifying the instant back supports. Neither the elbow warmer nor the instant supports are designed as fashion statements or complementary articles of clothing. Second, the primary function of the articles is to provide relief from pain and, as such, the articles are not dependent on any type of clothing to perform that role. Third, the articles do not have a secondary function in which they are intended to accessorize clothing. In fact, the use and function of the heat retainer is completely divorced from its use with clothing. Like the elbow warmer, the instant back supports do not have a “logical nexus with clothing” as they “neither add to clothing's beauty, convenience nor effectiveness.”

Therefore, it is the opinion of this office that the instant back supports are not clothing accessories within heading 6117. They do not exhibit the relationship with clothing necessary to be considered accessories to clothing; nor adorn or accent clothing. Further, their principal use, providing relief from pain, is in conjunction with supporting the wearer’s lower back as a type of brace. As the articles do not function as accessories, they are 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).” EN 62.12(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 include, inter alia:

(1) Brasseries of all kinds.
(2) Girdles and panty-girdles.
(3) Corselettes (combinations of girdles or panty-girdles and brasseries). Corsets and corset-belts. These are usually reinforced with flexible metallic, whalebone or plastic stays, and are generally fastened by lacing or by hooks. Suspender-belts, hygienic belts, suspensory bandages, suspender jock-straps, braces, suspenders, garters, shirt-sleeve supporting arm-bands and armlets. Body belts for men (including those combined with underpants) 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).

In HQ 952390, dated December 16, 1992, Customs considered headings 6212 and 6307 for classifying the "X-Tend Back Protector”, a stretch mesh fabric back support with a hook and loop closure system. In making its determination that the merchandise was not classified in heading 6212, Customs referred to HQ 952201, dated October 26, 1992, which was a classification ruling on similar lumbar support belts. Customs noted:

The EN to heading 6212, HTSUSA, are clear in designating these articles as body-support garments or supports for other kind of apparel. The distinction centers on the fact that while the articles enumerated in the EN to heading 6212, HTSUSA, are principally used or worn as garments or garment accessories, those of heading 6307, HTSUSA, are not.

Stated simply, merchandise similar to the subject articles, is classifiable as belts of 6212, HTSUSA, if it functions with a dual purpose, in providing:
support for the body, or support for certain articles of apparel; and a construction that allows the belt to be worn comfortably next to the wearer's skin, under other garments.

This is the case for example, for such articles such as the brassieres, girdles, corset-belts, suspender-belts, hygienic belts, corrective belts, etc.

In the instant case, the subject merchandise is distinguishable from the enumerated articles of heading 6212, HTSUSA. Although the belts are designed to be worn next to the wearer’s skin, they are neither garments nor garment supporting articles, but pain relief retainers for the back. As they are not ejusdem generis with the body supporting garments of heading 6212, HTSUSA, and since there are no headings that specifically provide for the goods, they are classifiable in heading 6307, HTSUSA, as other made up articles.

Model 8*229 and GRI 3b

Model 8*229 is a support belt that has a removable pad attached to the belt’s interior by Velcro® strips. Although the pad is made of the same material as the belt, it also has Velcro® material for attachment. Therefore, we must now determine whether the removable pad and the back support together are composite goods pursuant to GRI 3(b), HTSUSA. GRI 3(b) provides:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN (IX) to GRI 3(b) states, in pertinent part, that:

Composite goods [which] are made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

GRI 3(b) applies in cases where composite goods are either: (1) attached to one another so as to form a whole; or (2) those with separable components if they are adapted to each other, are "mutually complementary," and would “not normally be offered for sale in separate parts.”

EN IX to GRI 3(b) provides examples of composite goods below:

Ashtrays consisting of a stand incorporating a removable ash bowl;

Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.

Like the ashtray and spice rack, the pad and the back support have dependent functions as the pad provides enhanced support to the back when used in conjunction with the back support. Further, the removable pad is not normally sold separately, but sold with the pad to be used in conjunction with the back support. As the merchandise satisfies this requirement, we find Model 229 and the pad to be composite goods.


At GRI 1, the Thermoskin back supports (Model numbers 8*227, 8*229 and 8*251) are classified as “other made up articlesotherother” within subheading 6307.90.9889, HTSUSA. The general column one duty rate is seven percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the 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 you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

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.


Myles B. Harmon, Acting Director
Commercial Rulings Division

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