The tariff classification of fabric covered plastic back supports from China

N129585 November 24, 2010 CLA-2-39:OT:RR:NC:N4:422 CATEGORY: Classification TARIFF NO.: 3924.90.5600 Ms. Stacey Normandy BackJoy Orthotics LLC 25852 McBean Parkway Suite 508 Valencia, CA 91355 RE: The tariff classification of fabric covered plastic back supports from China Dear Ms. Normandy: In your letter dated October 20, 2010, you requested a tariff classification ruling. The two submitted samples are identified as a BackJoy Core and a BackJoy Core Plus. These items are designed to correct the user’s posture and to relieve pressure and strain when in a sitting position. However, these items are designed to be placed under the seated individual and not behind his or her back. Each of the two items has a core made of polyamide (PA) plastic material that is surrounded by polyurethane (PU) plastic foam material. The core and the foam are completely covered, front and back, with an exterior of brushed polyester microfiber fabric material. The fabric on the BackJoy Core is tan in color and the fabric on the BackJoy Core Plus is black in color. The BackJoy Core Plus has additional memory foam situated under the fabric. Each of these items is in the shape of a curved seat, measures approximately 13” x 17¼” and is vented with 11 almond-shaped apertures and a larger handle aperture near one end. Each of the submitted samples included a textile fabric drawstring bag and one of the samples included a DVD. However, you have stated that the back support will not always be imported with the bag and none of the back supports will be imported with a DVD at present. Therefore, you have stated that the instant ruling request only pertains to the back support when imported without the bag or a DVD. Consequently, this ruling will only address the back support when imported without a bag or a DVD. In your ruling request you suggest classification of the Backjoy Core in HTSUS 9021.10.0090, which provides for orthopedic appliances. To support your claim you cite Headquarters Ruling Letter 967116, dated October 28, 2004. The merchandise covered by that ruling, parts of orthodontic headgear, is very different from the Backjoy Core. The articles in that ruling were parts designed to assist in the correction of malocclusion (the misalignment of teeth) by putting tension on the teeth to cause them to shift over time. They had to be worn by an individual for an extended period of time on a regular basis. Your article is intended to be placed in a chair where it will improve the comfort of an individual sitting upon it, and perhaps improve their seating posture. In this respect the Backjoy Core is more accurately compared to the articles described in New York Ruling Letter L86762, dated August 22, 2005. Much like the articles covered by that ruling, the Backjoy Core does not primarily serve to prevent or correct bodily deformities, such as malocclusions or scoliosis as in Harmonized System Explanatory Notes I (7) and (10) to 9021. Neither is it designed to support or hold parts of the body following an illness, operation, or injury (as detailed in Note 6 to Chapter 90). Though you state in your submission that the Backjoy does allow for dynamic movement in the pelvis while sitting, thus preventing the onset of osteoporosis, you make no such claim in your multi-page description of its benefits on your website, and provide no medical studies to support that conclusion. Furthermore, like the orthopedic support pillows described in Headquarters Ruling Letter 087213, dated September 18, 1990, the Backjoy Core lacks the support mechanisms (such as metal reinforcements, rigid parts, etc.) that characterize orthopedic articles of Heading 9021, per the Harmonized System Explanatory Note I to that Heading. That, combined with the fact that your article is placed on furniture as a cushion and not worn by a user further limits the likelihood that such a device would be considered orthopedic for tariff purposes. Therefore, the Backjoy Core is not classifiable in HTSUS 9021.10.0090. These items are considered to be composite goods within the meaning of General Rule of Interpretation (GRI) 3. Although the fabric exterior adds to the comfort of the user, it is designed primarily to enhance the appearance of the item. The plastic core provides the structure that aids in correcting the posture of the user and the plastic foam is the material that primarily provides greater comfort to the user. Therefore, it is the opinion of this office that the plastic material provides the essential character within the meaning of GRI 3(b). The applicable subheading for the BackJoy Core and the BackJoy Core Plus will be 3924.90.5600, Harmonized Tariff Schedule of the United States (HTSUS), which provides for …other household articles…of plastics: other: other. The rate of duty will be 3.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Gary Kalus at (646) 733-3055. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division