Application for Further Review of Protest No. 1704-17-101393; Mastectomy brassieres

HQ H291901 September 19, 2019 OT:RR:CTF:FTM H291901 YAG CATEGORY: Classification TARIFF NO.: 6212.10 Port Director, Atlanta Service Port 157 Tradeport Drive Atlanta, Georgia 30354 ATTN: Jeannelle Brooks, Supervisory Import Specialist RE: Application for Further Review of Protest No. 1704-17-101393; Mastectomy brassieres Dear Port Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1704-17-101393, dated May 31, 2017 and filed by Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP on behalf of Amoena USA, Corp. (“Amoena” or “Protestant”) concerning the classification of mastectomy brassieres under the Harmonized Tariff Schedule of the United States (“HTSUS”). On November 15, 2018, this office had a meeting with the Protestant and its counsel concerning the arguments in this case. Further samples and arguments were presented to substantiate the Protestant’s AFR. FACTS: This AFR concerns the classification of thirteen styles of mastectomy brassieres. The style names and numbers for the mastectomy brassieres that are the subject of this AFR are as follows: Mona 591; Carmen 0700; Lara Comf 3D 0436; Lara SB nude 0674; Lara S black 0675; Lara Satin SB 41589; Lea WB 0732; Ester SB 42576; Ester SB 42577; Barbara WB 0457; Magdelena SB 0463; Isadora SB 0947; and, Isadora SB 0948. The Protestant states that “[t]he mastectomy bras are used in conjunction with an artificial breast form” and “are tailored specifically for women who have undergone mastectomies or similar procedures.” According to the description provided by the Protestant, the mastectomy brassieres include special features, such as internal pockets, to secure and support the artificial breast forms and prevent them from falling out, and “[s]ofter materials inside the brassiere to ameliorate problems with sensitive skin and minimize the irritation of scar tissue.” The decision protested is the tariff classification of these mastectomy brassieres entered on one entry on April 25, 2016. The mastectomy brassieres were entered and liquidated under heading 6212, HTSUS, and specifically in subheading 6212.10.9020, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other: Other: Of man-made fibers.” The Amoena website provides the following information concerning the fabric composition of the thirteen brassieres at issue: Mona 591 - 79% polyester and 21% spandex; Carmen 0700 –61% nylon, 20% spandex, 12% cotton, and 10% viscose; Lara Comf 3D 0436 – 85% nylon and 15% elastane (spandex); Lara SB nude 0674 – 83% polyester and 17% elastane; Lara S black 0675 – 83% polyester and 17% elastane; Lara Satin SB 41589 – 74% polyamide, 11% polyester and 15% spandex; Ester SB 42576 – 42% polyester, 41% polyamide and 17% elastane; Ester SB 42577 – 42% polyester, 41% polyamide and 17% elastane; Barbara WB 0457 – 75% nylon, 11% polyester and 14% spandex; Magdelena SB 0463 – 54% nylon, 24% spandex and 22% polyester; Isadora SB 0947 – 57% polyester, 18% spandex, 15% cotton and 10% nylon; and Isadora SB 0948 – 57% polyester, 18% spandex, 15% cotton and 10% nylon. The Lea WB 0732 style mastectomy brassiere, which is also the subject of this AFR does not appear on the Amoena website. Both the Amoena Barbara WB 0457 and the Lea WB 0732 brassieres are underwire styles, as opposed to the rest of the bras in question, which are wire free. ISSUE: Whether a mastectomy brassiere is classified in heading 6212, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted” or in heading 9021, HTSUS, which provides for “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.” LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The 2016 HTSUS provisions under consideration are as follows: 6212 Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: 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: Note 1 to Chapter 62, HTSUS, states as follows: This chapter applies only to made up articles of any textile fabric other than wadding, excluding knitted or crocheted articles (other than those of heading 6212). Note 1(b) to Chapter 90, HTSUS, states as follows:  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); * * * Note 2 to Chapter 90, HTSUS, states as follows: Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules: Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings; Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind; (c) All other parts and accessories are to be classified in heading 9033. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “‘official interpretation of the Harmonized System’” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “‘provide a commentary on the scope of each heading’” of the HTSUS and are “‘generally indicative of [the] proper interpretation’” of these headings. See id. EN 62.12 states, in pertinent part: This heading covers articles of a kind designed for wear as body-supporting garments or as supports for certain other articles of apparel, and parts thereof. These articles may be made of any textile material including knitted or crocheted fabrics (whether or not elastic). The heading includes, inter alia: Brassieres of all kinds. * * * EN 90.21 states, in pertinent part: * * * PARTS AND ACCESSORIES   Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), parts and accessories of apparatus or appliances of this heading remain classified here. The Protestant argues that the mastectomy brassieres should be classified under heading 9021, HTSUS, as parts and accessories of artificial parts of the body. The Protestant cites to Headquarters Ruling Letter (“HQ”) HQ 962702, dated February 22, 2000, to support its assertion that the breast form is an artificial part of the body. Further, the Protestant states that Note 1(b) to Chapter 90, HTSUS, does not apply to the subject mastectomy bras for five reasons. First, the subject merchandise is “primarily used to support the breast form, which is not an organ of the body.” Second, the subject merchandise “are specifically designed to support and hold in place the breast form.” The Protestant argues that the elastic materials in the subject brassieres “help[] to shape the article around the particular body shape of the wearer and do[] not contribute primarily to supporting the breast form.” Third, the Protestant argues that the mastectomy brassieres are different than fashion brassieres because they contain “special pockets in which to place the form” and “are deeper and cover more surface area in order to hold the breast form in place and hide it from view.” Fourth, the subject mastectomy brassieres have non-elastic materials that provide support to the breast form, such as the hook and eye closure and the “under-bust to support the breast form” which is not composed entirely of elastic materials. Fifth, some of the subject mastectomy brassieres have plastic “side bones [to] help to provide horizontal stability to the breast form and hold it in place.” The Protestant also submitted a written statement by the retail consultant, who the Protestant states has “over thirty-five years [experience] in [the] apparel retail management” industry in support of the assertion that Note 1(b) to Chapter 90, HTSUS, does not preclude the subject mastectomy brassieres from classification in Chapter 90, HTSUS. Specifically, in considering the Carmen style brassiere, the consultant stated that “[t]he article’s elasticity … is not the principal source of support for the breast form.” Protestant also cited to several decisions issued by non-U.S. courts in support of its argument that mastectomy bras are not excluded from Chapter 90, HTSUS. We agree with the Protestant that the breast form is an artificial part of the body and could be thereby classified in heading 9021, HTSUS. See New York Ruling Letter (“NY”) N005512, dated February 2, 2007 (classified silicone breast implant); HQ 962702 (classified a mastectomy brassiere, but also mentioned as dicta that a breast form is an artificial part of the body); and NY 805975, dated February 8, 1995 (classified silicone breast prosthesis). In determining whether mastectomy brassieres are parts or accessories of the artificial body parts, we must first consider the applicability of Note 1 to Chapter 90, HTSUS. Note 1(b) to Chapter 90, HTSUS, states that Chapter 90 precludes “support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity.” In several CBP rulings, CBP had found that Note 1(b) precluded certain mastectomy brassieres from classification in Chapter 90, HTSUS. See NY N251158, dated March 21, 2014; NY N145875, dated March 1, 2011; and, HQ 962702, supra. Many, if not all, of the Protestant’s arguments were already addressed in HQ 962702, dated February 22, 2000. In HQ 962702, in examining the applicability of Note 1(b) of Chapter 90, CBP noted that pursuant to Dorland’s Illustrated Medical Dictionary 1198 (1994), the “term organ is defined as a somewhat independent part of the body that performs a special function.” Even though CBP did not explicitly specify that a breast form is an organ, CBP referred to it as such in stating that “the brassiere provides a pocket for the carrying of an artificial organ of the body, a breast form.” Pursuant to the Medical Dictionary, the breast is “the front of the chest, especially the modified cutaneous, glandular structure it bears, the mamma. In women the breasts are secondary sex organs with the function of producing milk after childbirth.” Further, “the breast is an organ whose structure reflects its special function: the production of milk for lactation (breast feeding). See https://pathology.jhu.edu/breast/basics/overview/. Therefore, the breast is an organ, and the brassieres in this case are meant to carry an artificial organ of the body. Accordingly, Note 1(b) to Chapter 90, HTSUS, is applicable in this case. Moreover, in HQ 962702, CBP stated that “the term support means to bear the weight of, especially from below, or to hold in position; prevent from falling, sinking, or slipping.” CBP observed that the brassiere’s support to the breast comes from the elasticity of the substantial bottom band and the straps, the spandex in the pocket and elastic elsewhere in the overall construction. In HQ 962702, counsel argued that Note 1(b) to Chapter 90, HTSUS, was intended to exclude only articles made entirely of elastic. In this AFR, Protestant states that Note 1(b) to Chapter 90, HTSUS, does not preclude the subject mastectomy brassieres from classification in Chapter 90, HTSUS, because “[t]he article’s elasticity … is not the principal source of support for the breast form,” as required by Note 1(b) to Chapter 90, HTSUS. Despite the variances in the argument, the result remains the same. In HQ 962702, CBP emphasized that Note 1(b) to Chapter 90, HTSUS, excludes textile support articles whose intended function is derived solely from their elasticity. CBP determined the following: While the instant article contains fabrics other than elastic, the breast form stays in place by virtue of the elastic. The legal note at issue does not say that the fit and form of the article cannot come from sewing pieces of fabric, elastic or otherwise, together. Heading 6212 is devoted to such articles, the majority of which are not mentioned as exemplars. The intended effect of this article is to hold and support, e.g., one real breast and one artificial breast in place against the chest. Except for the hook and eye closure, the support provided to the breasts, real or artificial, is derived solely from the elasticity. Although the pocket appears to “carry” the artificial form when the bra is not on the body, it is more accurately a comfort and convenience. When the bra is worn, the substantial elasticity of the garment keeps the breast form in place, whether or not it is in the pocket. In addition, the convenience afforded by the pocket is due to the spandex, an elastomeric fiber, in the knit fabric. Without the spandex, the pocket could not be constructed in a form-fitting manner and still stretch enough to take on the three dimensional breast form. While this AFR deals with different styles of mastectomy bras, the examination of the samples leads us to the same conclusion as in HQ 962702. We find that the support and holding power of the bras are derived from its elasticity. We note that the subject mastectomy brassieres also have a hook and eye closure, the internal pockets, and the under-bust shape (and some brassieres have a plastic side bone to hold the breast form in place, with two styles having underwires); however, if there is no elastic band below, no straps, spandex in the pocket, and elastic elsewhere in the overall construction, the brassieres in question would not stay in place to hold or support an artificial breast form. Even the underwire in the two of the styles is the feature that forms the frame of the brassiere, with the overall support and hold still provided by elasticity of the brassiere. Accordingly, the product is excluded by Note 1(b) from Chapter 90, and classifiable in section XI. Classification of the brassieres in heading 9021, HTSUS, as a part or accessory of the artificial body part is precluded. Heading 6212, HTSUS, specifically provides for “[b]rassieres.” In Victoria’s Secret Direct, LLC v. United States, 908 F. Supp. 2d 1332, 1353-54 (2013), the court indicated that brassieres provided for in heading 6212, HTSUS, are “women’s undergarment[s] designed to provide bust support.” The mastectomy brassieres, whether used to support one breast form or two, fit this description. Moreover, EN 62.12 states that the heading includes “[b]rassieres of all kinds,” thereby intentionally including different types of brassieres. As CBP correctly pointed out in HQ 962702, “this shows clear intent of the Harmonized System drafters to capture brassieres for special purposes, if they are constructed as brassieres, within heading 6212, HTSUS.” CBP further elaborated that legal Note 1(b) to Chapter 90 cannot be read in contradiction to this intent. The brassieres in question are specifically described as body supporting garments, they remain identifiable as brassieres by its very form and construction (though for special purposes). Accordingly, we affirm our decision in HQ 962702 and determine that the subject mastectomy brassieres are classified under heading 6212, HTSUS, and specifically in subheading 6212.10, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres.” Insufficient information was provided on the construction of the subject mastectomy brassieres, specifically, on whether they contain lace, net or embroidery, in order to classify this merchandise beyond the six-digit level. HOLDING: Under the authority of GRI 1, the thirteen subject Amoena mastectomy brassieres, specifically, Mona 591, Carmen 0700, Lara Comf 3D 0436, Lara SB nude 0674, Lara S black 0675, Lara Satin SB 41589, Lea WB 0732, Ester SB 42576, Ester SB 42577, Barbara WB 0457, Magdelena SB 0463, Isadora SB 0947, and Isadora SB 0948, are classified in heading 6212, HTSUS, specifically, under subheading 6212.10, HTSUS, which provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: Brassieres.” HQ 962702 is affirmed. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division