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HQ 965236




December 5, 2001

CLA-2 RR:CR:TE 965236 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Mr. Stanley Dreier
The Dreier Company, Inc.
375 Turnpike Road
East Brunswick, New Jersey 08816

RE: Revocation of HQ 087552, October 1, 1990; Classification of a knee brace

Dear Mr. Dreier:

This is in reference to Headquarters Ruling Letter (HQ) 087552 issued to you on October 1, 1990, in response to your letter of June 1, 1990 to the U.S. Customs Service, Office of Regulations and Rulings, requesting classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a knee brace.

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 revocation of HQ 087552, 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 revocation. No comments postmarked either before or after the close of the comment period were received.

In HQ 087552, October 1, 1990, a knee brace was classified under subheading 6212.90.0030, HTSUSA, 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. This ruling letter revokes HQ 087552, dated October 1, 1990.

FACTS:

The merchandise under consideration consists of a knee stabilizer, composed of neoprene rubber laminated on both the inner and outer surfaces with knit nylon fabric. The article has an opening near its center to provide patellar support.

ISSUE:

Whether the neoprene knee stabilizer 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 knee brace 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 or 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).

The neoprene knee brace at issue depends solely on its elasticity to support the joint and therefore, would be excluded from classification in heading 9021 on the basis of Note 1 (b) of Chapter 90.

HEADING 9506

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 that 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 neoprene knee brace at issue, is described as neither a “pad” nor a “guard.” Rather the item is called a brace or stabilizer. Nor is the knee brace or stabilizer 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 knee brace 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

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 9021.

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 forms of 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 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

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 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 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 similar to the knee brace at issue, knee braces with hinged support bars, under Heading 6307. See 963534, dated August 29, 2001; See 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 NY 862972, dated May 31, 1991, knee supports with hinges, were classified in Heading 6212, HTSUSA. 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. 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.

HOLDING:

The neoprene knee brace 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.

Sincerely,

John Durant, Director

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