CLA-2 CO:R:C:T 950470 SK

Ms. Nicole M. Huff
International Forwarders, Inc.
101 Trade Zone Drive, ste. 8A
West Columbia, South Carolina 29170

RE: Classification of heat retainer; "Thermoskin"*; elbow warmer; 6307, HTSUSA; not a clothing accessory

Dear Ms. Huff:

This is in response to your letter of September 4, 1991, on behalf of your client, United Pacific, Inc., requesting a binding ruling for an elbow warmer referred to as "Thermoskin"*. A sample was submitted to Customs for examination.

FACTS:

The submitted sample is a heat retainer which covers the elbow and a portion of the arm when worn. The item has two main applications: it is used in the treatment of arthritis and sporting injuries. The article comes in various shapes for various parts of the body and product literature states that the heat retainer provides "light compression and prolonged heat treatment" to the injured or the affected parts of the body.

The heat retainer is composed of neoprene rubber which is laminated on the outer surface to both a knitted nylon fabric and a knitted nylon pile fabric. On the inner surface the neoprene is laminated to a knitted nylon pile fabric. Velcro-like closures serve to provide an adjustable fit. The article is to be imported from Australia.

ISSUE:

Whether the heat retainer is classifiable under heading 6117, HTSUSA, which provides for other made up clothing accessories, or under 6307, HTSUSA, which provides for other made up articles?

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LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 provides that the classification shall be determined according to the terms of the headings and any relevant section or chapter notes.

Heading 6117, HTSUSA, provides for clothing accessories. There are no Legal Notes to either Chapter 61 or Section XI, HTSUSA, which expressly provide for the classification of the subject merchandise. Moreover, the term "accessory" is not defined in the tariff schedule or Explanatory Notes. Webster's New Collegiate Dictionary, (1977), defines "accessory" as a thing of secondary or subordinate importance or an object or device not essential in itself but adding to the beauty, convenience, or effectiveness of something else. Customs defined accessory in Headquarters Ruling Letter (HRL) 088540, dated June 3, 1991, as an article that is related to the primary article, and intended for use solely or principally with a specific article. In heading 6117, HTSUSA, the primary article is clothing, and the accessories classifiable under this provision will be related to clothing, intended for use with clothing and of secondary importance to clothing.

The alternative heading, 6307, HTSUSA, provides for other made up textile articles. This is not a true alternative in that heading 6307 is a "basket" provision intended to classify merchandise not provided for more specifically in other headings of the Nomenclature. We must determine whether classification is proper under heading 6117, HTSUSA; if not, we will address whether classification is proper under heading 6307, HTSUSA.

The article at issue is a heat retainer designed to provide warmth and a modicum of support to individuals suffering from arthritis or sporting injuries. The heat retainer is not designed as a fashion statement nor to complement articles of clothing. The heat retainer's primary function is to provide relief from pain and, as such, it is not dependent on any type of clothing to perform that role. The heat retainer does not have a secondary function in which it is intended to accessorize clothing. In fact, the use and function of the heat retainer is completely divorced from its use with clothing. The subject merchandise has no logical nexus with clothing; it neither adds to clothing's beauty, convenience nor effectiveness. It is quite clear that the article at issue does not exhibit the requisite relationship with clothing so as to render it classifiable as a clothing accessory under heading 6117, HTSUSA.

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Although the Explanatory Notes (EN) to heading 6117, HTSUSA, part 7, expressly include kneebands as classifiable under this heading, Customs notes that kneebands and articles similar in function (i.e., articles which provide warmth and support) will only be classifiable under this heading provided that they may also be properly considered to be "clothing accessories" as the legal terms of the heading require.

Heading 6307, HTSUSA, provides for other made up articles not specifically provided for elsewhere. As the article at issue is not provided for elsewhere in the Nomenclature, and it is a made up textile article, it is properly classifiable under this provision.

HOLDING:

The submitted sample is classifiable under subheading 6307.90.9490, HTSUSA, which provides for other made up articles: other: other ... other, dutiable at a rate of 7% ad valorem. There is no textile visa category associated with this classification at this time.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), and the restraint (quota/visa) categories, your client should contact its local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division