CLA-2-63:RR:OT:NC:N3:351
Mr. Steven B. Zisser
Zisser Customs Law Group
2297 Niels Bohr Court, Ste. 114
San Diego, CA 92154
RE: The tariff classification of a hinged knee brace from Mexico
Dear Mr. Zisser:
In your letter dated Sept. 22, 2010, you requested a tariff classification ruling on behalf of your client, DJO, Inc., of Vista, Cal.
You submitted a sample of hinged knee brace model 81-07585. It is made of Drytex® fabric, which is described on the website of a company selling this product (JointHealing.com) as follows: “Drytex® fabric is only produced exclusively for DonJoy. It is a patented Lycra fabric surrounding a nylon core.” Please note that this construction is considered to be a textile fabric for tariff purposes. The website continues, “Drytex is much more comfortable than neoprene, which virtually every other manufacturer uses. In addition it is much more breathable, and therefore less ‘hot’ to wear, especially if you live in a warm climate or are active in sports. Finally, there are people with allergies to neoprene; Drytex is a great solution for them.”
The brace features two bilateral steel hinges that you state provide knee stability and support.
The brace wraps around the knee and tightens with hook-and-loop fastener strips. A sleeve model is also available and it would be classified the same as the wrap-around version.
The applicable subheading for both the wrap-around and sleeve versions of the hinged knee brace will be 6307.90.9889, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other made up textile articles, other. The rate of duty will be 7% 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 the World Wide Web at http://www.usitc.gov/tata/hts/.
You propose classification in subheading 9021.10.0090, HTSUS, which provides for orthopedic appliances including crutches, surgical belts and trusses and for splints and fracture appliances other than internal fixation devices or appliances.
You state, “DJO, Inc. is a leading global provider of high-quality, orthopedic devices, with a broad range of products used for rehabilitation, pain management and physical therapy. They also develop, manufacture and distribute a broad range of surgical reconstructive implant products.”
However, the DonJoyHME on-line catalog in which model 81-07585 appears does not include any surgical reconstructive implant products and is for the sale of some items which are classifiable in heading 9021, HTSUS, e.g., an Arm Sling to immobilize the forearm and upper arm, and a Cervical Collar to immobilize the neck. It also includes other items which are not classifiable in heading 9021, e.g., a Hot/Cold Therapy Wrap, and an Elastic Back Support which is “recommended for support of lower back during repetitive activities, compression and support for injuries of lower back, and helps prevent lower back sprains and strains.”
Decision 8 relating to a reinforced lumbar support belt in the Listing of Classification Decisions of the Harmonized System Committee (HSC) (25th Session – March 2000) did not classify that lumbar support belt in heading 9021. It is not clear if the Elastic Back Support on the DonJoy website is reinforced with multiple rigid stays, like the one in the HSC decision, but, even if it is, classification in heading 9021 would not apply.
You attempt to distinguish this item from the hinged knee brace in Headquarters Ruling Letter (HRL) 965234, dated Dec. 5, 2001 (not Dec. 12, 2001, as in your citation), published as part of a final revocation of previous rulings in the Customs Bulletin of Dec. 19, 2001. The item there was very similar physically to this item and, while the ruling noted that the importer was Sports Products Marketing, that was not the only basis for its exclusion from heading 9021. Also, although you do not indicate any similar athletic use in your submission, the brochure intended for the purchasers in the box with the sample indicates that, regarding athletics, its only contraindication is that two of them should not be used simultaneously on both knees “during activities (i.e., skiing) that may cause the braces to contact each other, resulting in potential loss of control and injury.” There is no contraindication for use in sports otherwise and, given its very strong similarity to the item in HRL 965234, use in sports seems quite appropriate, which is not consistent with classification in heading 9021, as indicated by HRL 965234.
In addition, JointHealing.com states, “The DonJoy Drytex Hinged Knee Brace can be used for most non-contact sports.”
We do not agree that subheading 9021.10.0090, HTSUS, applies.
You also propose classification in “Heading 9019 as Mechano Therapy Appliances.” You do not specify but we assume you intend subheading 9019.10.20. However, Explanatory Note I to heading 9019 states, regarding Mechano therapy appliances:
These appliances are mainly used to treat diseases of the joints or muscles, by mechanical reproduction of various movements. It should be noted that such treatment is usually carried out under medical supervision; the apparatus of this heading should therefore be distinguished from the ordinary physical culture or medical exercising equipment designed for use in the home or in specially equipped premises (heading 95.06) (e.g., elastic cable extenders or exercisers; spring grips of various kinds; “rowing” machines for reproducing rowing movements; stationary one-wheeled cycles for training purposes or for developing leg muscles).
We do not agree that subheading 9019.10.20, HTSUS, applies.
The sample will be retained as part of the official case file.
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 Mitchel Bayer at (646) 733-3102.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division