The tariff classification of a woman’s garment from China

N145875 March 1, 2011 CLA-2-TA:OT:RR:NC:TA:354 CATEGORY: Classification TARIFF NO.: 6212.10.9020 Mr. Ken Hogenes HMG Inc. 5755 – 176th Street Surrey, BC V3S 4C5 RE: The tariff classification of a woman’s garment from China Dear Mr. Hogenes: In your letter dated January 25, 2011, you requested a tariff classification ruling. The sample submitted will be returned. You have submitted a sample of a mastectomy bra and a breast prosthesis “Been-a-Boob” used in the bra, Model #3772. The bra is made up of 40% polyester, 37% nylon, 14% cotton, and 9% spandex fabric. It features full cotton inner pockets with side openings from which the “Been-a-Boob” can be removed. Other features include Raschel lace-like fabric at the top portion of the V-styled front, adjustable shoulder straps, sewn-in panels which provide support at the lower portion of the front and at the sides, capping along the bottom, and a triple adjustable hook and eye rear closure. In your submission you suggest classification of the TAB Custom-Fitted Prosthetic Bra in Heading 9021, 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. You argue that the TAB bra is a garment specifically designed to accept and hold a prosthetic in place (a prosthetic breast), and thus should be considered an orthopedic device. Customs has previously ruled on a similar article in Headquarters Ruling Letter (HRL) 962702, dated February 22, 2000 (which you reference in your letter). In that ruling it was determined that mastectomy brassieres were not classifiable in Heading 9021. One of the reasons cited by that ruling is the fact that Note 1(b) to Chapter 90 excludes supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held is derived solely from their elasticity (such as maternity belts, thoracic support bandages, etc.) from classification in Chapter 90. You acknowledge this in your submission, and state that it does not apply to your product as the TAB bra’s support of the prosthetic breast is accomplished primarily through the non-elastic fabrics used in the bra’s construction. This argument was addressed in HRL 962702, and it was found that the elastic portion of the bra in that ruling played enough of a role in supporting the prosthesis for it to be excluded from Chapter 90 by Note 1(b). As the TAB bra contains a similar proportion of elastic fabric to the bra in that ruling (9% spandex for the TAB bra, compared to 10% in the bra covered by HRL 962702), the determination made in that ruling would apply to the TAB bra as well. Furthermore, HRL 966874, dated May 17, 2004, ruled that stoma filters and covers for individuals who have undergone a laryngectomy (the removal of the larynx) did not qualify for classification in Heading 9021.  That ruling revoked HRL 951654, which had classified stoma covers in Heading 9021, and which was dated July 2, 1992 so it had been effect even when HRL 962702 determined that Heading 9021 did not apply to mastectomy bras.  962702 determined that stoma covers, unlike the examples given in the Harmonized System Explanatory Note to 9021, were not “precise electronic devices” and did not actively compensate for a defect or disability, nor did they do anything to assist or replace the function of an organ after failure (or removal), and, as a result, could not be classified in Heading 9021.  It was not sufficient that, inter alia, they improved the user’s appearance since their use would “keep the stoma discreet.” The same can be said for the TAB bra, as it does not do anything to assist or replace the function of an organ after failure (or removal). Taking this into account, along with the decisions of HRL 962702, the TAB bra is not classified in Heading 9021.   The applicable subheading for the brassiere will be 6212.10.9020, Harmonized Tariff Schedule of the United States (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 rate of duty will be 16.9% 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 classification in 9817.00.96 of this item, contact National Import Specialist J. Sheridan at (646) 733-3012. If you have any questions regarding the ruling, contact National Import Specialist Robert Ivers at (646) 733-3054. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division