CLA-2 RR:CR:TE 965238 BAS
Janice M. Previti
Reebok International Ltd.
100 Technology Center Drive
Stoughton, MA 02072
RE: Revocation of NY A89561, December 11, 1996; Classification of an ankle brace
Dear Ms. Previti:
This is in reference to New York Ruling Letter (NY) A89561 issued to you on December 11, 1996, in response to your letter of November 15, 1996 to the Director, Customs National Commodity Specialist Division in New York, requesting classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an ankle 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
NY A89561, 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 NY A89561, dated December 11, 1996, an ankle brace was classified under subheading 9021.19.8500, HTSUSA, which 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: artificial joints and other orthopedic or fracture appliances; parts and accessories thereof: Other: Other. We have now had occasion to review that decision and found it to be in error. This ruling letter revokes NY A89561, dated December 11, 1996.
FACTS:
The merchandise under consideration consists of an ankle brace, which resembles the upper part of a laced up boot and is made of a heavy reinforced textile material. According to your letter, the ankle braces are designed for use by football players as ankle support. The ankle brace was classified in subheading 9021.19.8500, HTSUSA which 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: artificial joints and other orthopedic or fracture appliances; parts and accessories thereof: Other: Other.
ISSUE:
Whether the ankle brace 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 ankle 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 ankle brace at issue does not solely depend on elasticity to support the ankle joint and, therefore, would not be precluded from classification in heading 9021 on the basis of Note 1 (b) of Chapter 90.
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.”
You stated in your original letter that the ankle brace is designed for use by football players to enhance performance and protect from injury during sport activities. You did not describe the subject 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, Reebok International, Ltd. does not focus on the healthcare market but rather the sports gear/sports equipment market. Reebok International’s website does not feature medical or healthcare products but rather focuses on athletic shoes and apparel. Accordingly, we do not believe the subject merchandise is the type of orthopedic appliance described by Heading 9021, HTSUSA.
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 description of the ankle brace at issue indicates that it is not “ejusdem generis” or “of the same kind” of merchandise as 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 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 ankle braces at issue may restrict movement, they do not immobilize the ankle 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)
These 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 ankle brace is clearly 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 items at issue do not share with the enumerated articles.
Although the ankle brace would not be excluded from Heading 9021 because it does not derive support solely from its elasticity, as discussed above, the item is nonetheless not esjudem generis with the exemplars in Heading 9021.
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 which is 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 ankle brace at issue is described as neither a “pad” nor a “guard.” Nor is the ankle brace 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 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
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 ankle 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 ankle brace 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.
This ruling is consistent with several other rulings in which articles supporting joints or organs were classified in Heading 6307. See HQ 963534, dated August 29, 2001, HQ 964317, dated May 1, 2001; 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 952568, dated January 28, 1993 (knee brace with hinged support bars 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 ankle 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
Commercial Rulings Division