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HQ 964492




May 30, 2001

CLA-2 RR:CR:TE 964492 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Bernard Adrien
Fritz Starber Inc.
410, St-Nicolas
Bureau 300
Montreal, Quebec
Canada H2Y 2P5

RE: Classification of a Knee Brace from Italy

Dear Mr. Adrian

This is in reply to your letter, dated August 1, 2000, on behalf of M.I.H. International Inc., requesting a reconsideration of New York Ruling Letter (“NY”) F89011,dated July 11, 2000, on the classification of a hinged knee brace. In NY F89011, four samples were classified, however, your request specifically seeks reconsideration of the style #70 knee brace. A sample of the #70 styled knee brace was submitted to this office for review.

FACTS:

The merchandise under consideration is a knee brace, identified as #70, made of 100 percent cotton. The brace measures approximately twelve inches long and is designed to slip over the knee. The brace can be tightened with laces and fastened at the top and bottom with Velcro® tabs. Sewn into each side of the brace is a polycarbon support, hinged so as to allow the knee to bend normally while being supported laterally during sports activities. The information you submitted to Customs describes this merchandise as an “All sport multi-centric hinged knee brace.”

ISSUE:

Whether the knee brace is classifiable under heading 9021, HTSUSA, as orthopedic appliances, or under heading 6307 HTSUSA, as 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 knee and ankle braces are potentially classifiable in two 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. Heading 6307, HTSUSA, which provides for other made up articles, is the other potentially applicable heading for the articles in question.

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 EN to Heading 9021 states that the orthopedic appliances referred to in the heading are appliances for “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.) 2. Humerus splints (to enable use of an arm after resection), (extension splints). 3. Appliances for the jaw.
4. Traction, etc., appliances for the fingers. 5. Appliances for treating Pott’s disease (straightening head and spine) 6. Orthopaedic footwear, having enlarged leather stiffener, which may be reinforced with a metal or cork frame, made only to measure. 7. Special insoles, made to measure.
8. Dental appliances for correcting deformities of the teeth (braces, rings, etc.) 9. Orthopedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.). 10. Trusses (inuinal, cural, umbilical, etc., trusses) and rupture appliances. 11. Appliances for correcting scoliosis and curvature of the spine as well as all medial or surgical corsets and belts (including certain supporting belts) characterized by:

(a) Special pads, springs, etc., adjustable to fit the patient. (b) The materials of which they are made (leather, metal , plastic, etc.); or (c) The presence of reinforced arts, 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.)

Examination of the appliances listed above reveals that the knee brace is not “ejusdem generis” or “of the same kind” of merchandise as orthopedic appliances listed in heading 9021, HTS. Most importantly, the knee brace is not intended to hold an organ following an illness or operation. Rather, it is used during exercise or sports activities. The appliances included, 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 knee brace at issue, 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 orthopedic 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 the knee brace 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 knee brace at issue does not share with the enumerated articles.

The subject knee brace, moreover, is not marketed to the medical market but is instead marketed as sports equipment. The packaging of the knee brace prominently describes this product as “All Sports Multi-Centric Hinged Knee Brace.” The “All Sport” implies that it is more likely worn for protection by people who meet normal definitions of healthy, but seek additional support when they choose to engage in sports which put unusual stresses on the knee.

The EN to Heading 9021 go on to 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).

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).

You have stated that the subject merchandise is intended to support the knee during exercise and sports activities but do not describe the merchandise as being utilized to prevent or correct bodily deformities. There is no mention of use of the brace at issue in relation to the presence of fractures or dislocation. In addition, the merchandise is marketed as a sports equipment rather than a healthcare product.

Customs believes the subject merchandise is not included in heading 9021 since the subject merchandise is not esjudem generis with the exemplars in Heading 9021. The EN state that the splints and other fracture appliances reference in Heading 9021 may be used either to immobilize injured parts of the body or to set fractures. While the knee brace at issue does restrict movement, it does not immobilize the knee as contemplated in the EN to Heading 9021. See 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).

Heading 6307, HTSUSA, is a residual provision which provides for other made up article 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 it constitutes a made up textile article. 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.

Furthermore, the EN to 6307 specifically provide for articles such as the knee brace 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.

Since the knee brace at issue is not covered by any more specific heading it is classifiable in Heading 6307, HTSUSA.

Customs has classified merchandise that is almost identical to the subject merchandise, knee braces containing a twelve inch hinged support bar, under HTSUSA 6307. See HQ 557216, dated August 19, 1993; 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).

HOLDING:

NY F89011 is affirmed.

The knee brace, style number 70, 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 is no textile quota category applicable to this provision.

Sincerely,

John Durant, Director

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