CLA-2 RR:CR:TE 965234 BAS
Mr. James P. Sullivan
Sullivan & Lynch, P.C.
156 State Street
Boston, Massachusetts 02109
RE: Modification of NY 862972, May 31, 1991; Classification of hinged knee support
Dear Mr. Sullivan:
This is in reference to New York Ruling Letter (NY) 862972 issued to you on May 31, 1991, in response to your letter of April 26, 1991 on behalf of Sports Products Marketing Inc. to the Director, Customs National Commodity Specialist Division in New York requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain Hummel Protect Support Products.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S. C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY 862972, as described below, was published in the Customs Bulletin, Volume 35, Number 42, on October 17, 2001. The Customs Service received no comments during the notice and comment period that closed on November 16, 2001. Customs, as the result of the disruption of mail service, waited two additional weeks until November 30, 2001 before proceeding with this reconsideration and modification. No comments postmarked either before or after the close of the comment period were received.
In NY 862972, May 31, 1991, five protective support products were classified in various subheadings including 6212.90.0030, HTSUS, 9506.99.6080, HTSUS, and 9506.99.2000, HTSUS. A hinged knee support was classified in subheading 6212.90.0030, HTSUS, which provides for brassieres, girdles, corsets, braces, suspenders, garters, and similar articles and parts thereof, whether or not knitted or crocheted, other; of man-made fibers or man-made fibers and rubber or plastics. We have now had occasion to review that decision and found it to be in error insofar as the classification of the hinged knee support is concerned. This ruling letter modifies NY 862972 insofar as it concerns the classification of the hinged knee support.
The merchandise under consideration consists of a hinged knee support made of neoprene covered by knit nylon fabric on both sides. The knee support measures approximately 30 centimeters in length. The tube-like support consists of two panels. The back panel measures 9 centimeters across and has a 5-centimeter hole at the back of the knee. At the top of the panel is a hook and loop adjustment strap. The front panel covers the front and sides of the knee area. It has a 3-centimeter hole at the knee, a wide hook and loop adjustment strap above the knee, and a narrow adjustment strap below the knee. On each side of the knee there is a covered, hinged metal support. The hinged supports run parallel to the leg, and measure approximately 26 centimeters in length. You stated that the straps and hinges support the knee preventing “reinjury to a previously sensitive knee.”
Whether the hinged knee support is properly classifiable in Heading 9021, HTSUSA, which provides for orthopedic appliances and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability, Heading 9506, HTSUSA, which provides for articles and equipment for general physical exercise and other sports, Heading 6212, HTSUSA, brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof or under Heading 6307, HTSUSA, which provides for other made up textile articles?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 hinged knee support is potentially classifiable in four HTSUSA headings. One possible heading is Heading 9021, HTSUSA, which provides for orthopedic appliances and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability. Other possible Headings for the merchandise include Heading 6212, HTSUSA, which provides for braces, Heading 9506, HTSUSA, which provides for articles and equipment for general physical exercise and other sports and Heading 6307, HTSUSA, which provides for other made up textile articles.
HEADING 9021, HTSUSA
Heading 9021, HTSUSA, 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.”
Note 1 (b) of Chapter 90 maintains:
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).
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each Heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to Heading 9021 state that:
This Heading does not include supporting belts or other support articles of the kind referred to in Note 1 (b) to this Chapter,…(generally Heading 62.12 or 63.07).
While the hinged knee support at issue is a support article of textile material, the metal springs support the joints and therefore the knee support’s intended effect on the organ to be supported does not derive solely from its elasticity. Accordingly, the hinged knee support is not precluded from classification in heading 9021, HTSUSA, on that basis.
According to Taber’s Cyclopedic Medical Dictionary, Edition 15, 1985, orthopedic is defined as “concerning orthopedics; prevention or correction of deformities.” A deformity is defined by Taber’s Cyclopedic Medical Dictionary as “an alteration in the natural form of a part or organ. Distortion of any part or general disfigurement of the body. It may be acquired or congenital. If present after injury, usually implies the presence of fracture, dislocation or both. May be due to extensive swelling, extravasation of blood or rupture of muscles.”
The importer in the instant case is Sports Products Marketing, Inc. Its products are generally utilized for the enhancement of an athlete’s performance and protection from injury during sport activities. The importer does not describe the subject merchandise as being utilized to “prevent or correct bodily deformities.” There is no mention of use of the hinged knee support in relation to the presence of fractures or dislocation. The hinged knee support is described as preventing reinjury to a previously “sensitive knee.”
Products marketed to athletes to enhance performance are significantly distinguishable from items intended to be worn in order to function while recovering from a fracture or dislocation or to function in everyday life. Accordingly, we believe the subject merchandise is not included in Heading 9021.
The ENs to Heading 9021 state that the orthopedic appliances referred to in the heading are appliances for “preventing or correcting bodily deformities” or “supporting or holding organs following an illness or operation.” The EN to Heading 9021 lists the type of orthopedic appliances that are included in that Heading as follows:
1. Appliances for hip diseases (coxalgia, etc.)
Humerus splints (to enable use of an arm after resection), (extension splints).
Appliances for the jaw.
Traction, etc., appliances for the fingers.
Appliances for treating Pott’s disease (straightening head and spine)
Orthopaedic footwear, having enlarged leather stiffener, which may be reinforced with a metal or cork frame, made only to measure.
Special insoles, made to measure.
Dental appliances for correcting deformities of the teeth (braces, rings, etc.)
Orthopedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.).
Trusses (inuinal, cural, umbilical, etc., trusses) and rupture appliances.
Appliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and belts (including certain supporting belts) characterized by:
Special pads, springs, etc., adjustable to fit the patient.
The materials of which they are made (leather, metal , plastic, etc.); or
The presence of reinforced parts, rigid pieces of fabric or bands of various widths.
The special design of these articles for a particular orthopedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold.
12. Orthopedic suspenders (other than simple suspenders of knitted, netted or crocheted materials, etc.)
The hinged knee support is not “ejusdem generis” or “of the same kind” of merchandise as the orthopedic appliances listed in Heading 9021. The merchandise at issue is not intended to be worn post-operation or to correct a bodily deformity but rather to be used to enhance performance during exercise or sports activities. The hinged knee support prevents common knee injuries and protects unstable knees. The opening helps stabilize the knee cap. The ENs state that the splints and other fracture appliances referenced in Heading 9021 may be used either to immobilize injured parts of the body or to set fractures. While the knee support at issue may restrict movement, it does not immobilize the knee as contemplated in the EN to Heading 9021. [Emphasis added] See HQ 964317, dated May 1, 2001 (ruling that a knee brace made of 90 percent neoprene and 10 percent nylon or polyester and elastic with two hinged metal braces would be excluded from classification in Heading 9021 because it does not immobilize the knee); HQ 958190, dated September 5, 1995, (ruling that a neoprene wrist support containing permanently inserted, rigid plastic support bars that were designed to immobilize the wrist in order to relieve tendinitis and prevent recurrence of carpal tunnel syndrome were properly classifiable in 9021). (Emphasis added)
Items which may be used to prevent sprains or strains and to support the area of the body where they are worn are not considered to be of the class or kind of appliance used with recovery from bodily deformity or used following illnesses or operations of an incapacitating nature. See NY 862972, dated May 31, 1991 (hinged knee support and back support with plastic stiffeners excluded from Heading 9021). The appliances included, in Heading 9021, HTSUSA, e.g., appliances for hip disease, for correcting scoliosis and trusses (used generally for treating hernias) are similar in the sense that they enable the wearer to engage in the activities of everyday life. The hinged knee support is not an item that is generally worn in order to function in everyday life but rather to engage in sports activities. We note that orthopaedic footwear and special insoles might also be used by the wearer to engage in athletic activities but the EN provides that those items are made to measure and not marketed to a mass market as are the subject merchandise in the instant case. The fact that most, if not all, of the items referred to in the EN to Heading 9021 must be fitted to a particular individual is also a feature which the item at issue does not share with the enumerated articles.
Although the hinged knee support would not be excluded from Heading 9021 because it does not derive support solely from its elasticity, as discussed above, it is nonetheless not ejusdem generis with the exemplars in Heading 9021.
Having precluded classification in Heading 9021, HTSUSA, we must determine whether classification in Heading 9506, HTSUSA is appropriate. Heading 9506, HTSUSA provides for, inter alia, articles and equipment for gymnastics, athletics, other sports and outdoor games
The ENs to Heading 9506 state in pertinent part:
This heading covers:
* * *
(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately of Heading 95.03), e.g.:
(13) Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards.
The sports protective equipment intended for inclusion within Heading 9506, HTSUSA, recognizes only such equipment designed exclusively for protection against injury, that is, equipment having protective features with the sole or primarily function of directly absorbing the impact of blows, collisions or flying objects. See HQ 958791, dated May 13, 1996 (knee pads used for playing sports, elbow pads and wrist guards are classifiable in Heading 9506); HQ 958387, dated April 8, 1996 (protective gear including knee and elbow pads used by in-line skaters to protect their knees, elbows and wrists against impact and abrasion are properly classifiable in Heading 9506); HQ 957120, dated January 31, 1995 (ruling that wrist guards utilized for in line skating are classifiable under Heading 9506); HQ 958190, dated September 5, 1995 (ruling that a hand/forearm pad, shin guards and elbow pad specifically designed to prevent injury while playing football or soccer are properly classifiable as protective sports equipment under Heading 9506); HQ 951406, dated July 13, 1992 (knee pads, elbow pads and wrist guards consisting of hard plastic cups and high impact plastic splint inserts, utilized for sporting activities have the primary function of protecting the wearer during sporting activities and are therefore properly classifiable in Heading 9506) [Emphasis added]; NY 862972, dated May 31, 1991 (a padded shin guard, specially designed to protect against leg blows in the game of soccer and an elbow support which primarily provides protection against blows or falls qualify for classification in Heading 9506 but a hinged knee support and a back support were excluded from Heading 9506 because neither of these items have as their sole or primary function to directly absorb the impact of blows, collisions or flying objects).
Significantly, the hinged knee support at issue is described as neither a “pad” nor a “guard.” Rather the item is called a “support.” Nor is the hinged knee support designed with the sole or primary function of directly absorbing the impact of blows, collisions or flying objects. Accordingly, Heading 9506, HTSUSA does not apply to the hinged knee support as its function is not to protect from impact imposed by blows, collisions or flying objects.
Having eliminated the possibility of classification under Heading 9021, HTSUSA and Heading 9506, HTSUSA, we must now determine whether the subject merchandise is properly classifiable in either chapter 62 as body supporting articles or in chapter 63 as other made up articles.
Heading 6212 provides for inter alia, braces. The ENs to Heading 6212, HTSUSA, state in pertinent part:
The 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…
The Heading includes, inter alia:
(1) Brassieres of all kinds.
(2) Girdles and panty-girdles.
(3) Corselettes (combinations of girdles or panty-girdles and brassieres).
(4) Corsets and corset belts. These are usually reinforced with flexible metallic, whalebone or plastic stays, and are generally fastened by lacing or by hooks.
(5) Suspender-belts, hygienic belts, supersensory bandages, suspender jock-straps braces, suspenders, garters, shirt-sleeve supporting arm-bands and armlets.
(6) Body belts for men (including those combined with under pants)
(7) Maternity, post-pregnancy or similar supporting corrective belts, not being orthopedic appliances of Heading 90.21.
This office is of the opinion that the exemplars to Heading 6212 are united by the fact that they support apparel or other items (e.g. garters) or are garments (e.g. brassieres) and are generally worn underneath other garments as, for example, maternity belts or men’s body belts. See HQ 952568, dated January 28, 1993; HQ 952390, dated December 16, 1992; HQ 952201, dated October 26, 1992. The hinged knee brace, unlike the exemplars in the ENs to Heading 6212, is not worn as a garment or an accessory to a garment and is therefore not properly classifiable in Heading 6212.
Heading 6307, HTSUSA, is a residual provision which provides for other made up articles of textiles. Section Note 7 (e) of Section XI, which covers textiles and textile articles states in pertinent part as follows:
7. For the purposes of this Section the expression “made up” means:
Assembled by sewing…..
The instant article has been assembled by sewing, therefore they constitute made up textile articles. The Explanatory Notes state regarding Heading 6307:
This Heading covers made up articles of any textile material which are not included more specifically in the Heading of Section XI or elsewhere in the Nomenclature.
Since the hinged knee support at issue is not covered by any more specific heading, it is classifiable in Heading 6307, HTSUSA.
The ENs to 6307 specifically provide for articles such as the hinged knee support in Note (27) which notes that Heading 6307 includes, in particular:
Support articles of the kind referred to in Note 1 (b) to Chapter 90 for joints (e.g., knees, ankles, elbows or wrist) or muscles (e.g., thigh muscles), other than those falling in other Headings of Section XI.
Customs has classified merchandise that is almost identical to the knee support at issue, knee braces with hinged support bars, under Heading 6307. See 963534, dated August 29, 2001; HQ 964317, dated May 1, 2001; HQ 952568, dated January 28, 1993. In addition, this ruling is consistent with several other rulings in which articles supporting joints or organs were classified in Heading 6307. See HQ 958791, dated May 13, 1996 (revoking NY 840648 and classifying a knit elbow/knee support composed of 39 percent cotton and 61 percent man made fibers with ten magnets sewn into the supporter in Heading 6307); HQ 958190, dated September 5, 1995 (ruling that adjustable neoprene knee supports which support the joint solely by means of their elasticity should remain classified in Heading 6307); HQ 952295, dated January 5, 1993 (ruling that a heel cup/anklet composed of neoprene and a soft flexible material such as molded rubber or thermoplastic was classifiable in Heading 6307); HQ 951844, dated September 4, 1992 (ruling that a pair of cotton/stretch nylon wristbands neither of which contained a protective insert or pad were classifiable in Heading 6307); HQ 952390, dated December 16, 1992 (ruling that a lumbar support belt with four or six covered metal vertical stays is classifiable in Heading 6307); NY E82026, dated June 16, 1999 (knee sleeve and wrist sleeve composed of neoprene rubber laminated on both sides with knit fabric classified in Heading 6307).
We note that in HQ 087552, dated October 1, 1990 and HQ 086667, dated May 9, 1990, a knee stabilizer and a knee support respectively both composed of neoprene rubber laminated on both the inner and outer surfaces with knit nylon fabric were classified in Heading 6212, HTSUSA. Also in NY A89561, dated December 11, 1996, ankle braces made of a heavy reinforced textile material for the purpose of providing ankle support for football players were classified in Heading 9021, HTSUSA. Finally, in NY D88848, dated April 1, 1999, a knee brace and a knee immobilizer worn only during sporting events by players to provide some support and to reduce the probability of reinjuring the knee joint were classified in Heading 9021, HTSUSA. Appropriate steps are currently being taken to review these decisions and to modify and revoke those rulings as necessary.
The hinged knee support is properly classified in subheading 6307.90.9989, HTSUSA which provides for “Other made up articles, including dress patterns; Other; Other: Other: Other: Other.” The general
column one rate of duty is 7 percent ad valorem. There currently is no textile quota category applicable to this provision.
John Durant, Director
Commercial Rulings Division